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BUR&.O Of rrtiSi":j~S
OFFICE OF GENERAi COUNSEL

u.s. Department of Justice
Federal Bureau of Prisons
North Central Region

Kansas City, KS

101-2492

February 3,

MEMORANDUMFOR WAL

GEN
FROM:
SUBJECT:

JO

,LYREPORT (January 1995)

DECISIONS/SETTLEMENTS/CASES OF INTEREST

o

Silverstein and Fountain
of Illinois, USP Marion.

v.

U.S., Civil Number 84-4055-WDS, S.D.

After over ten years of .litigation (or perhaps more accurately
inaction), this lawsuit alleging unconstitutional harassment by
some 30 BOP employees at USP Marion against the infamous pair of
Thomas Silverstein and Clayton Fountain appears to be drawing to
. a close. As you know, we settled with the plaintiffs i.n May of
1994. The only remaining question related to when the criminal
restitution orders against both plaintiffs became effective, and
thus important as to whether the plaintiffs could enjoy the
fruits of the settlement while still incarcerated. Due to some
ambiguities in the original restitution orders imposed by Judge
Foreman in 1984, it was argued the restitutions were not due
until five years after release, which of course in the cases of
, Silverstein and Fount,ain would mean five years after death. It
was agreed by both parties we would submit this sole issue to the
District Court.
On January 23, 1995 Judge Stiehl issued an order agreeing with
the United States that unless otherwise ordered by the court, 18
U.S.C. Section 3579(f) (3) provides restitution is due
immediately. Thus, unless plaintiffs appeal this decision, the
settlement reached stands wherein each plaintiff received $500.00
credited to their commissary accounts, and the remainder of the
settlement monies will be paid to'the plaintiffs' victims or the
victims' families as part of the restitution orders.

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Drummond
Circuit.

v.

u.s. Attorney' General, Civil Number 94-1009, 8th

'The inmate was injured'on his prison work assignment and
subsequently sought compensation under the Inmate Accident
Compensation procedure. The inmate requested $178.64 for 232
lost days. Prison staff determined his proper pay should be
$1.54 for six days. Plaintiff appealed this decision and was
denied. Subsequent,ly, the Plaintiff filed the instant Bivens
action to recover $178.64.
The Court dismissed this action becaus'e the Inmate Accident
Compensation is the, exclusive remedy for the compensation of lost
wages due to' on the job injuries.
'The'District

~ourt,

dismissal was affirmed by the Eighth' Circuit.

Luis Enrique Grant v. Michael Cooksey, et al., Civil No. 94-298JPG, Southern District of Illinois, USP Marion.

o

The plaintiff in this action alleges the Common Fare Diet was
implemented as the lIauthorized religious diet ll program, in
violation of First, Eighth and Fourteenth Amendment rights.
Specifically, plaintiff asserts the Common Fare Diet does not
provide Rastaferians a vegetarian diet, constituting cruel and
unusual punishment. Plaintiff seeks compensation in the amount
of $12,000.00.
Rodney C. Hamrick v. Michael Cooksey, et al., Civil No. 94-567JPG, Southern pistrict of Illinois, USP Marion.
The plaintiff in this action alleges he was placed in four-point
restraints for a total of 20 hours; that staff ignored his
requests to.be released from the four-point restraints when he
informed them that the restraints were causing him pain; that he
was placed in a cell that had inadequate light; that staff
arbitrarily denied him a Bible; and that he was placed on suicide
watch when there was no justification to placed on that status.
He seeks compensation in the amount of $50,000.00, and to be '
provided adequate psychological treatment at an appropriate
medical facility. The events Hamrick complains of occurred after
he mailed through Special Mail procedures an explosive devise
from USP Marion to an ATF attorney in Cincinnati, Ohio.
Faustino Calderonv. The United States of America, Civil No. 95C-0357, Northern District of Illinois, FCI'Oxford.
The plaintiff files this action pursuant to FTCA, alleging BOP
failed to protect. He had provided information to government
officials regarding criminal activity by another inmate's
relative. Plaintiff was attacked while preparing to take a
3144

3

shower; it required 100 stitches to replace his ear.
compensatory damages as shall be proven at trial.'

He seeks

Prows & Kalka v. United States of America. Case No. 91-Z-753,
District .of C9~orado, FCI Englewood
The u.s. District Court recently adopted and accepted Magistrate
Judge Borcher's report and recommendation which dismissed this
claim as to plaintiff Prows but allowed plaintiff Kalka to
contipue the case. In an action solely for equitable relief, the
court dismissed former inmate Prows by virtue, of his release from
custody.
The court denied the government's second and third
motions to dismiss inmate Kalka's claims on mootness grounds,
even though he has not been confined at' FCI Englewood since 1991.
The remaining claims relate to conditions at FCI Englewood
including: heating and ventilation, lighting, plumbing, and
legal mail~ The court has appointed counsel for plaintiff.
Court appointed plaintiff has secured an order from the court for
the governmen~ to pay for expert witnesses for piaintiff's case.
The u.s. Attorney has filed a request with DOJ, Civil Division,
to, seek interlocutory appeal on the basis of the court's lack of
jurisdiction due to mootness.

o

Warden. et al v. Perri11. et aI, Case No. 95-S-13, District of
Colorado,. FCI Englewood
This case which includes 11 current and former inmates at FCI
Englewood as plaintiffs names 9 current and former employees· of
FCI Englewood in a personal liability action seeking damages for
exposure to asbestos. The exposure is alleged to have occurred
in August, 1993 on a·prison· remodeling project. Varying degrees
of exposure to some of the inmates has been documented in a
response to a Congressional and in an OIA investigation. The
plaintiffs are represented by counsel.
Randy Lee Wright. et al v. Hawk. Kane. Edwards & Perril, Case No.
94-C-800, FCI Englewood
Like Warden. et al v. Perrill. et aI, this case involves bivens
type allegations of constitutional deprivations caused by adverse
environmental exposure at FCI Englewood. A total of sixteen
similar pro se law suits have been filed, eleven of which have
been so far consolidated in 94-C-800. Unlike Warden,' there is no
evidence indicating that any of these plaintiffs were exposed to
negative environmental substances at FCI Englewood.

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"

.'

4

STAFF TRAVEL AND LEAVE
John

None Planned

Daryl

None Planned

-Matt
Dan

January 30 - February 17
February 3

Glynco
Annual Leave

Gwen

February 9-10

Annual Leave

Helen

None Planned

Gary

None Planned

Cindy

February 8, 17

Note:

FTCA backup disk mailed to Mary Rose Hagan on February

Annual-Leave

1, 1995.

()

('
3146

,

0'

u.s. Department of Justice
Federal Bureau of Prisons
North Central Region

Ktmsas city, KS 66101-2492

January 31, 1995

MEMORANDUM FOR LEGAL STAFF

~
GARY ROBERTS, Paralegal Specialist

FROM:
SUBJECT:

Monthly Report

Please review this draft monthly report, make the appropriate additions, updating.
corre9tions, and deleting you find necessary and forward it on to the next person on
the list.

() Hele~-­
Gwen

~

\

{'"

Gary_ _ _ __

(')
3147

u.s. Department of Justic

pt',

Federal Bureau of Priso
North Central Region

....

Kansas City, KS 66101-2492

March 1, 1995

FROM:

SUBJECT:

LITIGATION AND RELATED ISSUES

o

ADVERSE DECISIONS:

None during this reporting period.

SETTLEMENTS OR JUDGEMENTS:
None during this reporting period.

DECISIONS OF INTEREST:

Carter v. Quinlan et al., Civil Number 91-3332-RDR, District of Kansas, USP
Leavenworth (UNICOR matter).
Plaintiff's Bivens action alleged constitutional violations in his removal from his job in
UNICOR. Inmate Carter alleged staff were prejudiced against him because of his race
and improperly disciplined and removed his from his job assignment. Plaintiff
requested injunctive, declaratory relief, as well as money damages in the amount of

$320,000.00.

o

The Court reviewed the record and found that plaintiff was ordered to perform work
on one occasion and refused to do so because uhe and the other inmate on the line
did not get along. II Inmate Carter was counseled regarding his refusal and returned to
work. In a subsequent event inmate Carter was ordered to relieve another inmate and
3120

2
he refused to do so. An incident report was wr!tten and the inmate ultimately
disciplined by the UDC with 8 hours extra duty. Additionally, the UNICOR foreman
prepared a job action form recommending removal of plaintiff from UNICOR. This
recommendation was approved and plaintiff was removed from his UNICOR
assignment and placed in other institutional work.
"
The Court reviewed the record in this matter and concluded the disciplinary action
was in compliance with applicable regulations and statutes. Further, that plaintiff's
removal from UNICOR without a hearing was appropriate as there was no
constitutional implications in the assignment or removal from a prison job assignment.
Summary judgment was granted for the defendants on February 15, 1995.

Vashty St. Claire. et al. V. U.S.A., CIV-94-1769-PHX-SMM, District of Arizona.

o

Plaintiff is the widow of former federal inmate Robert St. Claire. She alleged that her
husband had been incarcerated in several federal prisons, hospitals and other facilities
from November 18, 1989 until the time of his death on January 23, 1992. In this
hybrid Bivens/FTCA suit, Plaintiff alleged that the United States and its employees
violated the decedent's constitutional rights by subjecting him to cruel and unusual
punishment and were subsequently negligent in their medical care of him. Plaintiff
sought compensatio"n for incurred medical expenses, loss of present and future
earnings, attorney's fees, and loss of society and asked for damages in the amount of
four billion dollars ($4,000,000,000).
On February 24, 1995, the United States District Court for the District of Arizona
dismissed the action for Plaintiff's failure to properly serve the United States and for
Plaintiff's failure to appear at the Order to Show Cause Hearing.

PENDING CASES OF INTEREST:

Prows" Kalka V. United States of America. Case No. 91-Z-753, District of Colorado,"
FCI Englewood.

o

The U.S. District Court recently adopted and accepted Magistrate Judge Borcher's
report and recommendation which dismissed this claim as to plaintiff Prows but
allowed plaintiff Kalka to continue the case. In an action solely for equitable relief, the
court 'dismissed former inmate Prows by virtue of his release from custody. The court
denied the government's second and third motions to dismiss inmate Kalka's claims
on mootness grounds, even though he has not been confined at FCI Englewood
since 1991. The remaining claims relate to conditions at FCI Englewood including:
heating and ventilation, lighting, plumbing, and legal mail. The court has appointed
counsel for plaintiff. Court apPointed plaintiff has secured an order from the court for
the government to pay for expert witnesses for plaintiff's case. The U.S. Attorney has
filed a request with DOJ. Civil Division. to seek interlocutory appeal on the basis of the
court's lack of jurisdiction due to mootness.
3121

3

(~

Warden. et al
Englewood.

v.

Perrill. et al., Case No. 95-5-13, District of Colorado, FCI

This case, which includes 11 current and former inmates at FCI Englewood as
plaintiffs, names 9 current and former employees of FCI Englewood in a personal
liability action seeking damages for exposure to asbestos. The exposure is alleged to
have occurred in August, 1993 on a prison remodeling project. Varying degrees of
exposure to some- of the inmates has been documented in a response to a
Congressional and in an alA investigation. The plaintiffs are represented by counsel.

Randy Lee Wright. et al. v. Hawk, Kane, Edwards & Perrill, Case No. 94-C-BOO,
District of Colorado, FCI Englewood.
Like Warden. et al v. Perrill. et ai, this case involves Bivens type allegations of
constitutional deprivations caused by adverse environmental exposure at Fel
Englewood. A total of sixteen similar pro se law suits have been filed, eleven of which
have been so far consolidated in 94-C-800. Unlike Warden, there is no evidence
indicating that any of these plaintiffs were exposed to negative environmental
substances at Fel Englewood.

Calderon v. U.S.A., Case No. 95-C-0357, W.O. Wisconsin, Fel Oxford.
Plaintiff filed this action pursuant to FTCA. Alleges staff failed to prevent an attack on
his person by another inmate, in which he suffered a physical injury, disfigurement,
mental and emotional distre~s, and medical expenses. Plaintiff's ear was cut off and
reattached with 100 stitches. He seeks compensation in the amount of one million
dollars in his tort claim.

Farmer v. Brennan, et al., Case No. 91-C-716-S, W.O. Wisconsin, Fel Oxford.
As you know, on remand from the Supreme Court, the District Court granted the
defendants' motion for summary judgement. Plaintiff has appealed to the 7th Circuit,
although Judge Shabbaz denied Farmer's in forma pauperis request. The Circuit has
now appointed counsel for Mr. Farmer.

Dixon v. USA, et al., Case No. 94-3309-RDR, District of Kansas, USP Leavenworth.
We continue to prepare this problematic FTCA\Bivens case which alleges physical
abuse of inmates during a forted cell move. Upon the approval of the Director and
you, we have now forwarded our recommendations regarding representation to the
Department. Because we anticipate a delay in the representation decision, the United
States Attorney has filed for another extension of time, which we anticipate will be
granted.
3122

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4

CRIMINAL MAnERS

United States v. Paul, Case No. 94-CR-393-S, District of Colorado, FCI Florence.
As I recently reported to you in a memorandum, FCI Florence inmate Preston Paul
was acquitted in the assault of an employee in the Food Service area. The employee
suffered a broken jaw. Unfortunately, the defense persuaded the jury that the inmate
was taunted into his actions by racist staff. We firmly believe that this jury decision
and that the prosecution of the case was vigorous and
was clearly err

V}/

appropriate.

"

"

On a more positive note, a jury conviction was obtained in October of 1994 in the
case of United States v. Bailey, arising out of. an assault of two staff by an inmate at
the USP Florence. Even though this case also raised the defense of racism, the
inmate was convicted and received a 37 month consecutive sentence.

STAFF TRAVEL AND LEAVE

CJ

John

March 17

CLE

Daryl

March 17

CLE

Matt

None Planned

Dan

March 6-8. 10, 17

Gwen

None Planned

Helen

March 13-17

Gary

None Planned

Cindy

March 24. 27

Annual Leave

JanEtt

March 20

Annual Leave

Note:

FTCA backup disk mailed to ~ary Rose Hagan on March" 1. 1995.

CLE

Admin. Leave

3123