u

UNITED STATES GOVERNMENT

memorandum
North Central Regional Office Kansas City, MO 64153

REPLY TO
ATTN OF:

SUBJECT:

TO:

Jo
M NTHLY REPORT

~

"c.l
,fY\' I .n.u
, l

~

Wallace H. Cheney, Assistant Director
General Counsel and Review

FEDERAL TORT CLAIMS ACT/EMPLOYEE CLAIMS

Received
Personal Property
Personal Injury
Wrongful Death

35
28
07
00

Closed
Overdue at End of Month
Pending at End of Month
Paid in Month
TOTAL PAID:

20

41
204
00

$ 000.00

The total paid figure represents claims reported in previous months and updated to the current
month when offers of settlement were accepted or paid.
There were 4 medical treatment related claims to report for this period.
LITIGATION

New Actions Received
- Habeas
- Personal Liability
- Tort
- Injunctive/Other
Oosed
Pending (Since 1-1-88)

16

05
09

02
00
·00
478

(2)

LITIGATION
PENDING TRIALSIHEARINGS
Dunn v. U.S.A.,. Civil Number 90-3516, FILS, FfCA. In this action the plaintiff alleges that in
the winter of 1989 staff failed to clean the outside recreation area of ice causing him to slip and
fall and injure his leg. Trial is set for June 4, 1992 at the USP Marion court room.
Campbell v. U.S.A., Civil Number 90-3569, FILS, FfCA. The Plaintiff alleges that subsequent
to his transfer to USP Marion from a state facility his television was packed and remailed by
Marion staff in a negligent manner causing the television to be damaged in transit.
There is no question the television was in good working condition at USP Marion. In doubt is
the manner in which it was packed and the treatment the package received while in the
possession of the U.S. Postal Service.
The Assistant U.S. Attorney will settle this action from the U.S. Attorney's general fund.
McKoy v. Brennan, Civil Number 90-C-622-S, FWIW, Personal Liability. This action addresses
the question of our obligations, if any, to provide an inmate access to state law materials or to
otherwise provide some form of assistance to federal inmates in state law cases. This case is
set for trial on June 15, 1992. A motion for summary judgment is also pending.
CASES OF INTEREST
MCC CHICAGO
Flisk v. Warden True, Civil Number 92-C-1203, FaN, Personal LiabilitylHabeas. In this action
the inmate complained that Warden True inappropriately shortened the length of his time in
a erc thereby violating due process rights.·
The Court held that in order to state a claim for violation of a procedural due process right, the
Plaintiff must show that he has been deprived of a property or liberty interest. The Court found
that our policy in the matter of transfers and ere placement were discretionary in nature and
did not create a lIberty or property interest; therefore, the inmate had no due process
entitlement in transfer to a community treatment center.
Dismissed April 10, 1992.
USP LEAVENWORTH
Smith y: Matthews, Civil Number 88-3265-R, Personal Liability. The Plaintiff alleges a
constitutional violation when the unit t~am of inmate Tony Smith removed her from the visiting
list of the inmate.

· ..

'

.
(3)

The basis for this action was information received by staff that inmate Smith's wife was to bring
narcotics into the facility. Although a strip search revealed no drugs, the unit team removed
Ms. Smith from the inmate's visiting list.
The Court held that there is no absolute right to visitation in the prison setting and that prison
visiting is subject to prison regulations and such regulations are valid if they are reasonably
related to legitimate pedological objectives.
In this action, the court concluded that no liberty interests existed and that Plaintiff had no due
process entitlement to visiting a prison inmate. Additionally, staff were within their discretion
to order a search of a visitor for ccntraband on the basis of reliable confidential information.
Dismissed May 18, 1992.
Fe}

ENGLEWOOD/O~{FORD

Green v. Brennan, Civil Number 91-N-1843, FCO, Personal LiabilitY. Plaintiff alleged that
policies at the FCI Oxford regarding inmate correspondence are unconstitutional. Further, that
he received certain disciplinary reports and that he was denied a transfer to FCI Englewood in
retaliation for filing law suits.
The Court found the complaint defective for a number of reasons including, improper venue,
improper defendants, the inapplicability of respondeat superior, and that all defendants acted
within the constraints of the applicable policy and therefore enjoyed qualified immunity.
Dismissed March 4, 1992.

STAFF TRAVEL AND LEAVE

Daryl
Mike
Gary
Jackie

June
June
June
June
June

1-5
7-13
15-19
3
11-12

FCC Colorado
Harvard Law School
House Hunting Trip
Annual Leave
Annual Leave

UNITED STATES GOVERNMENT

l/TW
SUBJECT:

, egioU Counsel
entral Region

5

U

NE

memorandum
\.

'1

"L--

~REPORT

Wallace H. Cheney, Assistant Director
General Counsel and Review

FEDERAL TORT CLAIMS ACTIEMPLOYEE CLAIMS

Received
Personal Property
Personal Injury
Wrongful Death

52
31
21
00

Closed
Overdue at End of Month
Pending at End of Month
Paid in Month

74
23
189
22

TOTAL PAID:

$ 2,443.28

The total paid figure represents claims reported in previous months and updated to
the current month when offers of settlement were accepted or paid.
There was one (1) medical treatment related claim to report for this period.
LmGATION

New Actions Received
- Habeas
- Personal Liability
- Tort
- Injunctive/Other
Closed
Pending (Since 1-1-88)

30
10

13

06
01

08
494

OPTIONAL POftM NO. 10
(REV. I ...)
GIlA PPMII (41 CPR) 101-11.1
101~114

-2-

LITIGATION
PENDING TRIALSIHEARINGS
No reports of pending litigation for the month of July were received from facilities
within this region.
CASES OF INTEREST
USP MARION:

Ferries v. Fenton, et aI., Civil Number 80-4240, FILS, Personal Liability. In this action
the plaintiff alleged defendants violated his First, Fifth, Eighth and Ninth Amendments
rights. The complaint appears to allege that the Warden personally had the plaintiff
locked in segregation in order to have adverse disciplinary reports in his file, which
in tum would lead to his parole rejection by the Parole Commission.
On May 29, 1992, the district Judge dismissed the action with prejudice for plaintiffs
failure to comply with the Court's Order directing the plaintiff to make himself
available for deposition no later than April 1, 1992. The record indicated that the
plaintiff, who was represented by counsel, had more than four months to make himself
available for deposition and on at least six occasions failed to appear for deposition
as scheduled. The Court found the explanations for plaintiffs failure to appear as
directed insufficient to excuse his disregard for the Court's clear and unequivocal
Order.
Greene y United States of America, Civil No. 87-3901-PMF, FILS, FfCA. In this
action the plaintiff claims the staff did not adequately protect him from the attacks of
fellow inmates on two separate occasions. The first alleged attack took place in April
of 1989, when an officer let an inmate into the law library, where the plaintiff was
located, and the inmate proceeded to physically attack the plaintiff. The second
alleged incident took place in November of 1989, when an inmate obtained a bucket
of hot water from the shower and threw it on the plaintiff.
On June 6, 1992, judgment was .ordered in favor of the defendant, concluding that
plaintiff failed to prove breech of duty and actual injury. Staff had absolutely no
reason to anticipate the two attacks which were done by different inmates. There was
no history of trouble between the plaintiff and the other inmates involved in the
incidents. In addition, plaintiff was seen by medical staff following each of the
incidents and found no significant injuries which could be attributed to the events.

-3-

Dune ~ United States of America, Civil No. 90-3516-WDS, FIlS, flCA. In this
action the plaintiff alleges that he slipped and feU on ice and snow in a recreation cage
on three separate occasions during December 1989.
An evidentiary hearing was conducted at the penitentiary on June 4, 1992. On two of
the occasions the plaintiff alleges to have fallen, he failed to prove two necessary
elements, staff negligence and/or breach of duty and actual damage or injury. It was
determined staff used ordinary care when cleaning the cages so that inmates could use
them for recreation and that staff warned inmates that certain areas might still be slick.
Additionally, plaintiff was seen by medical staff on both occasions and found to have
suffered no injuries, nor sustained any loss.
On the other occasion plaintiff failed to prove that he had even participated in outdoor
recreation on the day in question. The credible evidence established that plaintiff did
not recreate as he claimed. Segregation logs were used as evidence.
As result of this hearing, judgment was entered in favor of the defendant on June 15,

1992.
USP LEAVENWORTH

Grant y: Matthews, et ~ Civil No. 89-3194-R, FKS, Personal Liability. In this action,
the plaintiff brought a civil rights action in May 1989, alleging violation of his First and
Eighth Amendment rights by the defendants. Plaintiff was seeking damages in the
amount of $270,000.00. Defendants asserted that they were immune from suit based
on qualified immunity.
The incident of which the plaintiff complains took place in March of 1989. Plaintiff
was assigned to Food Service and informed his supervisor that he could not serve food
that day because there was meat on the menu. Taking this into consideration, the
supervisor gave the inmate plastic gloves and directed him to serve the gravy, peas and
soup. Plaintiff once again refused, on the grounds that there was meat in the soup.
The supervisor repeated the order and plaintiff refused to comply; thus, he received
an incident report and was placed in administrative segregation.
An investigation was conducted and a disciplinary hearing was held. Plaintiff claimed
to be of the Rastafarian faith. Evidence at the hearing included a statement by the
institution's Chaplain· that the Rastafarian faith did not prohibit serving meat to
another. The DHO concluded the plaintiff was gUilty and imposed sanctions.
After a review of the record and case law, the court agreed that defendants were
entitled to qualified immunity. Plaintiffs's supervisor took steps to remove him from

'.
-4his assignment upon the inmate's initial complaint and issued plastic gloves to eliminate
actual contact with the food. The disciplinary board verified the tenets of the
Rastafarian faith by consulting with practicing Rastafarian outside the penitentiary,
sanctions imposed on the plaintiff were done only after investigation and determination
that the plaintiff's belief was not based on religious teachings but on personal
preference. Employees acted in compliance with BOP policy and BOP policy did not
require it's institutions to defer to such personal preferences.
Action was dismissed and all relief denied on June 12, 1992.
Bagguley v. Matthews, et 26 Civil No. 88-3486-R, FKS, Personal Liability. In this
action plaintiff is aIJeging due process violations and is seeking damages as well as
declaratory relief. Plaintiff has based his claim on the Warden's refusal to request a
waiver of his committed fine, thus keeping the plaintiff from qualifying for a transfer
to the country of his citizenship for completion of his sentence.
Upon the courts review of the records, applicable regulations and case law, it was
determined that the defendants had not violated the plaintiffs due process rights.
Plaintiffs request for transfer was denied by the Office of Internal Affairs on August
30, 1988. Bagguley unsuccessfully challenged the denial for transfer, BagguJey v. Bush,
953 F.2d 660 (D.C. Cir. 1991), cert. denied, 112 S.Ct. 1698 (1992). Furthermore, there
was nothing in the regulations which could be reasonably construed as establishing
specific directives or mandating a particular 9utcome when specified circumstances
occur. The Warden had no duty to seek permission from the sentencing court to
pursue transfer when plaintiff had not satisfied his committed fine or to otherwise
assist plaintiff in efforts to obtain a waiver of the fine; the decision to do so is
discretionary.
The Court rejects plaintiffs claim of a deprivation of his constitutional rights and case
was dismissed and all relief denied on June 3, 1992.
FCIOXFORD
McKoy ~ Brennan, et ~ Civil No. 90-C-622-S, FWIW, Personal Liability. In this
action filed in September of 1990, plaintiff alleges that he was denied his
constitutional right of access to the courts based on his allegations that the defendants
denied him access to the Wisconsin Statutes.
In April of 1992, defendants filed a motion for summary judgment pursuant to Rule
56 of the Fed. R. Civ. Proc. Upon review of the following facts, defendant's motion for
summary judgment was granted on June 10, 1992.'

-5On May 28, 1990, plaintiff requested two books from the Wisconsin Statutes. On June
1, 1990 he was told by one of the defendants that the books were unavailable because
they were on reserve for use by inmates enrolled in a college political science course.
On August 13, 1990, the plaintiff submitted a complaint to another of the defendants
. concerning the denial of his request for the Wisconsin Statutes. This defendant
advised the plaintiff that the books were not part of the FCI law bbrary and referred
him to the Legal Assistance to Institutionalized Persons Program (LAIP).
The Court concluded that a prison has no duty to provide state law library material if
an inmate chooses not to accept adequate alternative services, Corigain v. Miller, 708
F.2d 1241, 1250 (7th Cir. 1983). It was undisputed that there was an adequate
alternative resource (LAIP) available to the plaintiff which he failed to utilize. Plaintiff
would also have to demonstrate that he was prejudiced in a state legal action by the
defendant's actions, in order to prevail on a claim of denied access to the courts.
Hossman v. Spradlin, 812 F.2d 1019 (7th Cir. 1987). There was no evidence that he
was prejudiced in any way. Accordingly, the Court found that the defendants did not
violate plaintiffs constitutional right of access to the courts.
FPC DULUTH
Abodeely et a1. v. United States v. St. Luke's Hospital, Civil No. 5-89-122, FMN,
FfCA. Plaintiffs in this action were alleging negligence on the part of medical staff
in perfoniling reasonable and necessary examinations, diagnosis, treatment and delayed
transportation to the hospital resulting in permanent injury to his heart. He was
seeking $750,00.00 in damages and his wife was seeking $100,000.00 in damages. None
of the medical personnel included in this action were employees of the government.
They were employed by St. Luke's Hospital which is a contractor of the government.

A compromise and settlement was reached by all parties in June 1992. The United
States agreed to pay the plaintiffs twenty-two thousand five hundred dollars
($22,500.00) in full settlement of any and all claims of injury, death or property
damage arising from the same subject matter as the above action.

STAFF TRAVEL AND LEAVE
Daryl
Mike
Gary
Jackie

July
July
July
July

6-10
10
3,27,28,29,30,31
22,23,24

DHO Training
Last Day at NCRO
Annual Leave
Annual Leave

,

,.

Apr,', Met'! ,:::tne 1'192..

LITIGATIOM

LOe

He

NOM

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

AWD

MXR

NER
SER
NCR

:']3

~L/.

/3 31.{ O:J-.,

491 18 Lf

SCR
WXR

co
TOT

NARRATIVB ARaLY8IS
PEIXHITIOI8
LOC - LOCA!'IOB
mnc - NUKBn O~ TOTAL LAWSUITS PILED IN QUARTER

Be - HUKB.. O. BABBAB CORPU8 ACTIONS ~ILBD
FTC - HUKB.. OF PTCA ACTIONS FILBD
BIV - NUMB.. OW BIVENS ACTIONS FILBD
OTB - 0TBKa ACTIO.. ~ILBD
AN. - NUMB.a O. LITIGAT%OH REPORTS COMPLETED
PEN -

IIBJlDDG

CLD - NUMB.a or ACTIONS CLOSBD
HIT - NUMB•• OP BBARINGS OR TRIALS (INCLUDB INFO IN NARRATIVE)
SET - NUHBBao. 8BTTLBKBHT8 (INCLUDB I~O IN NARRATIVE)
AWl) - NUKBla OJ' AWAJU)8 ( INCLUDB IHJ'O IN NARnTIVB)
GOVBRNHIft ACTION AND DATS 01' ACTIOH - (INCLUDB IN NARRATIVE)

LeC

NOM

PROP

PI

APPR

AM'l'

DEN

PEND

OD

A/O

MXR
HER

SER
NCR 1/~3

8? 3b

~ ~¥~

/tJ/ /&9 ;23

SCR

WXR
I

I

TOT

NARRATIVB ANALYSIS
DEPINITION.
LeC - LOCA'l'IOH

NOH - NUMBBa

~ILBD

IN QOARTER

PROP - PRO,aan CLAIM
PI - PBRSODL IHJURY CLAIM
APPR - APPROVBD
AK'1' - 'l'O'l'AL AJIOUN'l' APPROVED

DEN - OBIIIBD
PEND - PBIIDIHCJ
OD - N'DKBBR OVBRDOB
A/O - AVEDOB !lUXBBR OP DAYS OVERDUB
AlP - AVERAGB LBHG'l'B 01' TID TO PROCBSS

AlP

(

u.s. Department of Justice
Federal Bureau of Prisons
North Central Regional Office

Tower II. 81h Floor
Sireet
Kal7.'ius Ci(l'. KS 66101-2421

.J{){) Siale

August 9.. 1999

MEMORANDUM FOR CHRISTOPHER ERLEWINE.
ASSISTANT DIRECTOR/GENERAL COUNSEL
GENERAL COUNSEL AI'!D REVIEW DIVISION

FROM:

JOHN R. SHAW.. Regional Counsel

SUBJECT:

Monthly Report (July, 1999)

LITIGATION. CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

inst

nurn

hc

NCR

32

17

ftc
3

biv

oth

ans

pen

cld

hit

set

awd

6

6

19

524

27

10

0

0.00

Total cases for Calendar Year 319
NUM - Number of total lawsuits filed In the month
HC - Number of habeas corpus actions filed in the reporting period
FTC - Number of FTCA actions flied
BIV - Number of Bivens actions filed
OTH - Number of other actions flied, e.g., mental health, mandamus
ANS .. Number of litigation reports completed

3881

North Central Region
Regional Counsel Monthly Report
June .. 1999
Page 2
PEN - Number of cases pending
CLD - Number of cases closed
HIT - Number of hearings or trials (include In narrative)
SET • Number of settlements (Include in narrative)
AWD - Number of Awards (include in narrative)

ADMINISTRATIVE CLAIMS:
JAN
67

FEB
70

MAR
99

APR
88

MAY
77

JUN
97

JUL
68

AUG

SEP

OCT

NOV

DEC

JUN

JUL
192

AUG

SEP

OCT

NOV

DEC

ADMINISTRATIVE REMEDIES
JAN
188

FEB
208

MAR
228

APR
215

MAY
207

230

Total for Calendar Year 1468

('

FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS

ACTUAL ON-HAND
ACTUAL RECEIVED
ACTUAL PROCESSED
ACTUAL BACKLOG

PRIVACY
ACT
34
35
49
9

FOIA
4
3
10
0

Total for Calendar Year 486
Backlog represents those requests which have not been responded to within the twenty work days
target set by DOJ.

ADVERSE DECISIONS

(

Robinson v. J. W.Booker, Atchison. v. 1. W. Booker, Broderick v. J. W. Booker. Gentle v.
Booker, and Thompson v. Booker. USP Leavenworth. District of Kansas
u.S. District Court Judge .. Richard D. Rogers recently decided that the BOP cannot use
court-imposed sentence enhancements to deny inmates early release eligibility under 18 U.S.C. §
3621 (e)(2)(B). The court ordered the BOP to reconsider the inmates for early release. This case

3882

(

North Central Region
Regional Counsel Monthly Report
June .. 1999
Page 4
for lack of prosecution.

PENDING CASES OF INTEREST
Collins v. LaVallee, USP Florence. District of Colorado
Defendants' motion to dismiss/summary judgment denied due to difference of material fact.
USAO filed motion for extension of time in which to answer due to possibility that DOJ will
take over case. The Government has withdrawn representation authority for three of the four
named defendants. DOJ also withdrew on the fourth defendant . however. procured private
counsel at government expense for that defendant. This case involves alleged improper use of
force against the plaintiff. Investigation continues.
Chong-Won Tai v. U.S., et at FCI Pekin, N.D. Illinois
FTCA action filed in the Northern District of Illinois stemming from a bus accident in May of
1996. Representation requests are being completed for the individual defendants so that a
motion to remove them from the case can be filed.
Massey and Otten v. Helman.. et at. FCI Pekin, C.D. Illinois
Appeal of class action medical case. Case has been set for oral argument before the Seventh
Circuit on Wednesday. September 8. 1999 at 9:30 a.m ..
Clark v. Keohane, et aI., USMCFP Springfield. W.O. Missouri
Plaintiff alleged that he suffered from chronic myelogenous leukemia and that he required an
autologous bone marrow transplant in order to survive.
David Crocker. et al. v. T. Durkin. et al. .. USP Leavenworth.. District of Kansas
In this Bivens-styled action, the four plaintiffs allege that defendants actions were unjust and
arbitrary in connection with decisions made concerning religious issues involving the Nation of
Islam.

Turner v. USA.. USP Florence.. District of Colorado
Failure to protect case arising from inmate assault at USP. Government's Motion to dismiss
denied last month. Draft answer provided to USAO. We have encountered unusual difficulties in
the defense of this matter. One of the involved staff has recently pleaded guilty to violation of
civil rights.
Sousa v. U.S.A ... et aI., USMCFP Springfield. W.O. Missouri
Plaintiff alleged that medical professionals mistakenly diagnosed his medical condition and

3885

North Central Region
Regional Counsel Monthly Report
June" 1999
Page 5
removed his right lung pursuant to an unnecessary medical procedure.
Boyce v. Cooksey, ADX Florence and NCRO. District of Kansas
Christopher Boyce" convicted spy. prison escapee. and bank robber" has sued Mr. Hershberger
and Mr. Cooksey after being designated to ADX Florence. He was placed in the ADX for both
safety and security reasons. The BOP has filed a motion for summary judgment and opposing
counsel continues to find reasons to file additional or supplemental responses. The latest
supplement seeks to move Boyce because a management variable was not approved for Boyce in
a timely manner.
Barnett v. Knowles" USP Florence. District of Colorado
Bivens action alleging a defendant spoke to an inmate improperly and that staff member was
subsequently disciplined. Plaintiff asserts he was retaliated against by the other defendants and
that this retaliation took the fonn of assault. Plaintiff filed a response to the defendants' motion
to dismiss. Previously granted representation for certain of the defendants is being reconsidered
by DOJ.
Bracciodieta v. Holt. USP Florence. District of Colorado
TRO hearing held on July 22. via video-conferencing. Plaintiff requested to not be celled with
two other inmates, be given protective custody status and be transferred. Adverse R and R
issued on August 3" 1999" in which the Magistrate Judge found that the plaintiff had met the
burden of proof for the issuance of injunctive order. Magistrate recommended that the plaintiff
be housed alone until his transfer. Objections to the recommendation to be filed.
RELIGIOUS FREEDOM RESTORATION ACT CASES
Kikumura v. Hurley. FeI Florence. District of Colorado
RFRA case involving denial of pastoral visit at AOX. OOJ paying for outside counsel. Outside
counsel filed motion to dismiss claims and status conference was held. Court allowed plaintiff
until July 1 to file response to Motion to Dismiss. DOJ appeared on behalf of the defendants in
their official capacities.. arguing that even under the RFRA standard" the actions of the defendants
were appropriate.
HEARINGS AND TRIALS

(

USA v. Reyes-Lopez, FCI Waseca. District of Minnesota
Inmate on inmate assault prosecution. While there was clear evidence that the defendant stuck
the victim with an iron. the jury returned a not guilty verdict after only two hours. Interviews of
jurors revealed that they believed the defendant acted in self-defense even though the victim was
sleeping at the time of the attack. Matt Tyeite provided assistance at trial.

3886

('"
\

North Central Region
Regional Counsel Monthly Report
June .. 1999
Page 6
USA v. McElhiney, USP Leavenworth. District of Kansas
Drug conspiracy prosecution of Aryan Brotherhood inmates. Jury deadlocked at 10-2 with only
two jurors finding the inmate not guilty. Mary Ellen Doucette and Rick Winter provided
substantial assistance to the U.S. Attorney's Office in this matter. Additionally .. Paul Pepper and
Jenifer Grundy spent plenty of time coordinating witness interviews. A new trial will take place
in September 1999.
UPCOMING HEARINGS OR TRIALS
Okai v. Verfurth, et ai., FCI Greenville, S.D. Illinois
This Bivens action alleging excessive use of force during the aftermath of the 1995 disturbance is
set for jury trial on Thursday. August 26. 1999. District Court Judge Murphy has ordered eleven
inmates from several BOP institutions to be transferred to the Southern District of Illinois to
testify on OkaPs behalf.

(.

United States v. David Michael Sahakian. United States v. Joseph L. Tokash .. United Sates v.
Rodney Allen Dent, United Sates v. Scott Lee Martin~ United Sates v. Mitchell E. Kolb, United
Sates v. John Derel Usher,USP Marion.. Southern District of Illinois.
An initial appearance and arraignment was held in the above cases on July 7, 1999. The above
named inmates are charged with possession of a prohibited object in violation of 18 U.S.C. §
1791 (a)(2). Jury trial is set for 9:00 AM .. September 13, 1999 before Chief U.S. District Judge J.
Phil Gilbert in Benton, IL.

CRIMINAL MATTERS
USA v. Washington~ FCI Pekin.. C.D. Illinois
Inmate indicted under Title 18 U.S.C. § 1791 (a)(2). Initial arraignment set for August 19, 1999.

United States v. David Armstrong . USP Florence, District of Colorado
On July 13 .. 1999. a former correctional officer pleaded guilty to a one count information
charging him with conspiracy to violate the civil rights of inmates in violation of 18 USC § 241.
Sentencing range between 51 and 63 months. Sentencing set for mid-September, however, we
anticipate it will be continued. This case has received some media coverage and impacted the
defense of several on-going civil cases.

(...

3887

North Central Region
Regional Counsel Monthly Report
June . 1999
Page 3
is in line with previous decisions being appealed to the Tenth Circuit in Scroger. Ward, and
Guido. An appeal brief was filed for these cases this month.
Grove v. Bureau of Prisons. FPC Duluth. District of Minnesota
U.S. District Court Judge James Rosenbaum held that the BOP was required to apply the old
Crimes of Violence program statement to an inmate who had not even entered the residential
drug treatment program at the time of filing. The judge held that the inmate had expressed
sufficient intent to enter the program and should thus benefit from the rules in place at the time
he filed his lawsuit. NCRO Legal is requesting appeal authorization through OGC.
Anderson v. Tenenbaum .. RCH Rochester. District of Minnesota
U.S. District Court Judge Ann Montgomery held that the provisions of 28 C.F.R. § 549.43 were
constitutionally inadequate because they did not satisfy due process. She found that FMC
Rochester staff must now allow for an administrative hearing before an impartial medical
decision maker when a person committed to the custody of the Attorney General has been
administered psychotropic medication for a period exceeding twelve months. These hearing will
take place in addition to the monthly monitoring program that exists in current BOP policy.
NCRO Legal is not seeking an appeal of this ruling.

SETTLEMENTS OR JUDGMENTS
Stapleton v. O'Brien, FCI Oxford. Seventh Circuit
Stapleton was denied early release pursuant to § 3621 (e)(2)(B) because a prior state conviction
for Reckless Endangerment was found to be an "aggravated assault." While the BOP prevailed at
the district court level. upon further review it .was discovered that at the time of the inmate's
conviction the state had an aggravated battery" statute in place. Under the latest protocol for
reviewing prior convictions from OGC. if a state has an aggravated battery or assault statute and
the inmate was convicted of some other crime. he should not be found to have a prior aggravated
assault. As a result of these circumstances the inmate was made eligible for early release.
II

DECISIONS OF INTEREST

(
\.

Blanche Dyer v. U.S.A., MCC Chicago, N.D.lllinois
An inmate who was at MCC Chicago for two weeks in 1989 filed a tort claim with the U.S.
Marshals Service regarding her medical treatment as a pre-trial inmate. U.S. District Court in
Iowa granted sununary judgment for the government. but the Eighth Circuit reversed and
remanded to the U.S. District Court for the N.D. Illinois. District Court Judge dismissed case

3884

c,,'

c 10~

I"~l-~

UNITED STATES GOVERNMENT

memorandum
<6\qv
TOa

Wallace H. Cheney, Assistant Director
General Counsel and Review

_"" ~ ~ 0 WI rn !\f;'n

.!,! ;.

.

81992

·!uq
--" ,
.

5

.-~ ~ :'::"?EAU OF PRISONS
. ..:....:-.:. -'}~ GENERAl COUNS8..

FEDERAL TORT CLAIMS ACT/EMPLOYEE CLAIMS

Received
Personal Property
Personal Injury
Wrongful Death

58

Closed
Overdue at End of Month
Pending at End of Month
Paid in Month

36
36

TOTAL PA:ID:

39

19
00

223
03

$ 100.29

The total paid figure represents claims reported in previous. months
and updated to the current month when offer of settlement were
accepted or paid.

There were six (6) medical treatmeDt related claim to report for
this period.
LITIGATION

New Actions Received
- Habeas
- Personal Liability
- Tort
- Injunctive/other
Closed
Pending

19
08
07
03

01
12
506

OPTIONAL PORM NO. 10
(REV. I . .)

.,,0....

GIlA PPMIt (41 CPR) 101-11"

l

I
I

2

PENDING TRIALS/HEARINGS
There were no reports of pending trials or hearings received from
institutions within this region.
DECISIONS/SETTLEMENTS/CASES OF INTEREST
FPC DULUTH
Henderson v. Baird. et al., civil Number 5-91-137, FMN. On June 3,
1992, the Magistrate Judge concluded the prison Institution
Discipline Committee (IDC) proceeding, regarding the plaintiff,
violated substantive due process in that there was no evidence to
establish a serious injury or attempt to cause serious injury, and
that a triable issue precluding summary judgment was created by
plaintiff's claim that his procedural odue process right created by
Wolff v. McDonnell were violated when staff refused to allow him to
call witnesses at the IDC hearing.
The AUSA filed a brief in opposition to the Magistrate's Report and
Recommendation, in which he gave an excellent argument on the
appropriate deference that should be afforded to prison officials
in carrying out 18 USC § 4042 (discipline of charged or convicted
persons).
CSP MARXON
Greene v. United states of America, civil Number 89-3299-PMF, ILSD,
Tort.
Plaintiff alleged that staff were negligence in securing,
inventorying and storing his personal property.
Due to this
negligence items were missing from the plaintiff's personal
property and other items had sustained damaged. The court awarded
damages against the defendants in the amount of thirteen dollars
and 05/100 ($13.05).

STAFF TRAVEL AND LEAVE
John
Gary
sonya

SEPl'EMBER
SEPl'EMBER
SEPl'EMBER
SEPl'EMBER

01-11
14-18
04
14-18

Romania
New Attorney Training
Annual Leave
New Attorney Trainoing