e \

./

\

U.S. Department of Justice

Federal Bureau of
Prisons
North Central Region

Kansas City, KS 66101-2492

February 7, 1997
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

MONTHLY REPORT (January 1997)

LITIGATION. CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

JAN
DEC

FEB

MAR

APR

MA Y JUN

JUL

AUG

SEP

OCT

NOV

MAY JUN

JUL

AUG

SEP

OCT

NOV

JUL

AUG

SEP

OCT

NOV

38
Total for Calendar Year
Pending

342

ADMINISTRATIVE CLAIMS:
JAN
DEC
70

FEB

MAR

APR

Total for Calendar Year 70
344

Pending

ADMINISTRATIVE REMEDIES
JAN
DEC
167

FEB

MAR

APR

Total for Calendar Year

MAY JUN

167

ADVERSE DECISIONS
Sterling v. United States, S.D. Ill., Civ. No. 93-148-WDS, USP Marion
Magistrate Judge Frazier denied the United States' motion for change or venue or summary
judgment. Judge Frazier ruled that the government waived any attack to venue because it failed
to raise the issue in its motion to dismiss. Judge Frazier then ruled that the "law enforcement
exception" to the FTCA found at 28 U.S .C. (c) only applied in those circumstances in which
BOP employees were engaged in a search, seizure or arrest. The judge ruled that the mere
storage of an inmate's property following his transfer to administrative detention was not the
type of seizure covered under the law enforcement exception.
Tighe v. Booker, D.Coi., Civ. No. 95-D-638, FCC Florence
On November 12, 1996, Judge Daniels ordered the BOP to give an inmate credit against a
federal prison term for time spent of federal writ when the offender was serving a state sentence.
After the government motioned Judge Daniels to alter or amend his judgment, the judge denied
the motion on December 10, 1996. The BOP lost a motion to reconsider a similar "old law" case
approximately two years ago. See Brown v. Perri II, 21 F.3d 1008 (J Oth Cir. 1994) and Brown v

I

Perrill, 28 F.3d 1073 (10th Cir. 1994). In the Brown case the Solicitor General did not authorize
an appeal. In the ~ decision, Judge Daniels almost exclusively relied on the Brown opinions
and we are recommending an appeal.

Sellers v. United States, S.D. Ill., Civ. No. 84-CV-4357, USP Marion
This case dates to an institution-wide pickup and security search of inmates' property conducted
following the murders of two staff members at USP Marion in 1983. The only remaining issue is
the loss of some books placed in storage in December of 1983. In a recent Memorandum and
Order, the court determined that the United States is liable for the loss of 33 books, and the
parties must reach an agreement on damages by 3/7/97.

SETTLEMENTS OR JUDGMENTS
Jimenez v. Rutledge, et al., S.D. Ill, Civ. No. 92-CV-909-WLB, USP Marion
The plaintiff alleged he was injured when the defendants slammed his finger in a cell door in
1991. After being injured, the plaintiff further alleged he was denied medical care. In a bench
trial before Magistrate Judge Cohn on December 17, 1996, judgment was entered on behalf of
the defendants.

Farmer v. Brennan, et. ai, W.D. Wis .. Civ. No. 91-C-716, FCI Oxford
During a trial held on January 22, 1991, a jury found that none of the named defendants were
deliberately indifferent to plaintiffs safety and that they did not proximately cause any damages
to the plaintiff. Subsequent to the jury's findings, judgment was awarded for the defendants..

PENDING CASES OF INTEREST

Sesler v. Pitzer, Eighth Cir., Appeal No., D. Minn., FPC Duluth
The plaintiff, a former federal inmate, is appealing the district court's determination that he was
not eligible for a year off under 3621 (e). Oral argument is set for February 14, 1997 in
Minneapolis.
Clark v. Lyallie, et al., D.CoI., Civ. No.96-S-0823, FCC Florence
The plaintiff seeks 2.5 million from each defendant as well as declaratory and injunctive relief.
The plaintiff claims he was assaulted by staff on 10/27/95 and subsequently denied medical
attention.
Hudson v. Helman, C.D.Ill., Civ. No. 96-1588, FCI Pekin
The petitioner claims his right to due process was violated when he was removed from his prison

"employment." The plaintiff has sought habeas relief on the matter.
Garris, et al. v. U.S.A .. et al .. W.D.Mo., Civ. No. 97-303S-CV-S-RGC, USMCFP Springfield
The plainti ffs claim the recent federal law prohibiting inmates from receiving literature that
depicts nudity is unconstituti onal.
Alejo v. Heller, S.D. III., Civ. No. 94-682-JPG, USP Marion
The plaintiff complains that he has suffered harassment by staff as a result of his Cuban heritage
and has been retaliated against because of complaints he has made regard ing prison conditions.
He also claims that he was unfa irly disciplined as a result of not having a Spanish interpreter
during the DHO process. The plaintiff seeks damages in excess of $600,000.
Compton v. Hedrick, S.D. III., Civ. No. 96-794-JPG, USP Marion
The plaintiff chall enges the DHO's finding that he conspired to kill another person and
conspired to escape because, according to plaintiff, "the whole thing was "faked.'" Plaintiff seeks
the restoration of 54 days good conduct time taken by the DHO.
Roberson v. Judge Porter, et aI., Eighth Circuit, Appeal No. , D. Minn., 4-96-816, FMC
Rochester/FC) Sa ndstone
After the district court di smissed plaintiffs Bivens acti on, it ordered FMC Rochester to
withdraw funds from the plaintiff s commissary account to pay the balance of the court's filing
fee. The plaintiff appealed to the 8th Circuit. The 8th Ci rcuit then assessed a filing fee from the
plaintiff for the appeal. The inmate is now incarcerated at FCI Sandstone.
Tyler v. Vereforth, et aI, S.D. III, Civil No. 96-046-JPG & Okai v. Verefurth , et aI, S.D. III.
Case No. 96-047-JPG, FCI Greenville
These two sim ilar cases contain all egations 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 adm inistrative disciplinary action against
some of the defendants for cond uct invo lving other inmates. We have been working closely with
DOJ staff regarding representation issues. In Okia v. Verfurth. et aI., three defendant were
approved for representation whi le three were not. Former U.S. Attorney Frederick Hess is
representing one of the employees denied representat ion. Two new defendants were recently
interlineated as John Does. Representati on for these individuals is pending with DOl
In Tyler v. Verfurth. et aI. , 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 empl oyees were denied representation by
DOJ and have been represented to date by Frederick Hess although conflicts may arise
Terrence Smith v. Man'in King, et. al., S.D. III., C iv. No. 96-S07-JPG, FC) Greenville.
This case foll ows on the heels of Okai v. Verfurth. et al. and Tyler v. Verfurth. et al. alleging '

similar claims of excessive force in the aftermath of the October 1995 di sturbance. 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
di sciplinary action against some of the defendants 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 invol ving the plaintiff. We continue to work closely
with DOJ staff regarding representation issues .
.Johnson v. Seiter. et aI, S.D. Ill., Civ. No. 96-396-JPG, FCI Greenville
Huffman v. Hawk. et aI, S.D. Ill., Civ. No. 96-629-JPG, FCI Greenville
Dunn v. Seiter. et aI, S.D. Ill., Civ. No. 96-396-.JPG, FCI Greenville
These three Bivens cases have been filed in the Southern District oflllinois also alleging that
staff used excessive force in the aftermath of the October 1995 disturbance a\ FCI Greenville.
While requests for representation have yet to be received, we are informed that a few ofthe
defendants have recently been served, and we expect to begin investigating recommendations
shortly.
Brown v. Pharmchem. ct aI., D. Minn., Civ. No. 3-95-103, FCI Sandstone
This case involves an inmate who tested positive for illegal narcotics, was issued a discipline
report, found guilty by the DHO and sanctioned with the loss of good time, loss of privileges,
and time in di sciplinary segregation. Years later, the independent laboratory who conducted the
drug test, Pharmchem, admitted to the BOP that it had erroneously concluded that the plaintiff
tested positive for drugs in 1991. Prior to his release the plaintiff was given credit for the good
time taken from him and the incident report was expunged. Nevertheless, the plaintiff brought a
claim against the Uni ted States under the FTC A for negligence.
Judge Kyle recently issued a Memorandum and Order dismissing the United States motion to
di smi ss or for summary judgment. In its motion, the United States argued that the plaintiff's
claim accrued years earlier and the lawsuit was untimely. Additionally, the United States argued
it owed no duty to the plaintiff and was absolved of liability because its employees followed
federa l regulations when processing the plaintiffs urine sample. Judge Kyle found the United
States' statute of limitations arguments to be without merit because the plaintiff did not learn of
his injury unti l Pharmchem notified the BOP of its mi stake. Next the judge decided that the BOP
was under a duty to further investigate the plaintiffs claims of innocence and make inquiries to
Pharmchem. The NCRO has encouraged the U.S. Attorney's Office to argue both the
independent contractor and discretionary function defenses to the FTCA. The NCRO has been
notified that Pharmchem has entered into settlement negotiations with the plaintiff.

RELIGIO US FREEDOM RESTORATION ACT
No new RFRA cases.
CRIMINAL MATTERS

,
United States v. Ahrens, W.D.Wis., Crim. Case. No. ,FC} Oxford
On January 7, 1997, Paul Ahrens was sentenced to 88 months for violation of 18 U.S.C. 2 and 18
U.S.C. 1791 (a)(l), Causing a Prohibited Object, Methamphetamine, to be Provided to a Federal
Prison.
United States v. Jones, W.D.Mo., Crim. Case No.96-03080-01-CR-S-E, USMCFP
Springfield
The defendant pled guilty on January 3, 1997, to willfully assaulting another inmate.
United States v. Melgar, C.D.lII., Crim. Case No. 97-10006, FC} Pekin
The defendant was indicted in January for Assault on a Federal Officer.
United States v. Prior, D. Col., Crim. Case No. , FCC Florence
Sentenced to 30 month for participation in riot and assaulting a staff member.
United States v. Craddock, D. Col., Crim. Case No. , FCC Florence
Sentenced to 33 month for assault on staff member during riot.
United States v..Jabari, D. Col., Crim. Case No. , FCC Florence
Sentenced to 12 month for assault on staff during riot.
United States v. Washington, D. Col., Crim. Case No. , FCC Florence
Sentenced to 12 months for assault on staff during riot.

ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST

Dennis Allen Brewer, Register Number 17619-083, USP Marion
FTCA Administrative Claim (FCC Florence), Personal Injury $200,000.00.
Inmate Brewer alleged that during an institution disturbance staff responded with the use of
firearms. Claimant asserted that the gunfire resulted in the loss of his right little finger.
Institution Investigations confirmed claimant lost his finger. However, medical staff indicated
the dan1age to the finger was consistent with a high impact, crushing type blow, not gunfire.
Inasmuch as a large number of inmates were involved in the di sturbance and were assaulting one
another with clubs and knives, it is specu lated that claimant lost his finger while fighting other
inmates. Further, even if the inmate' s statements regarding the event are taken as true, there is
no basis for the claim. Staff were acting within the scope of their employment and appropriately
utilized firearms to prevent serious injury, loss of life, or damage to property.
Inmate Brewer's claim was denied on January 28, 1997.
ST AFF TRAVEL AND LEAVE

•
February 13, 14

Jolm

Sesler Argument

Daryl

AtIDual Leave
February 2, 7
PKN, GRN, MAR MOU Issue February 12
February 13, 14
Sesler Argument
DHO Training
February IS-21

Dan

Atmual Leave

February 3, 4, IS, 19, 21

Tom

Armual Leave

February 14

Gwen

None Scheduled

Janet

None Scheduled

Gary

None Scheduled

Claims database WAN to Mary Rose Hagan on February 3,1997.

U.S. Department of Justice

Federal Bureau of
Prisons
North Central Region

Kansas City, KS 66101-2492

March 7, 1997
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM :

JOHN R. SHAW, Regional Counsel

SUBJECT:

MONTHLY REPORT (February 1997)

LITIGA TION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

JAN
DEC
38

FEB

MAR

APR

MA Y JUN

JUL

AUG

SEP

OCT

NOV

JUL

AUG

SEP

OCT

NOV

JUL

AUG

SEP

OCT

NOV

22

Total for Calendar Year 60
Pending

342

ADMINISTRATIVE CLAIMS:
JAN
DEC
70

FEB

MAR

APR

MAY JUN

114

Total for Calendar Year 184
372

Pending

ADMINISTRATIVE REMEDIES
JAN
DEC
176

FEB

MAR

APR

MAY JUN

180

Total for Calendar Year 356

ADVERSE DECISIONS

SETTLEMENTS OR JUDGMENTS

DECISIONS OF INTEREST
Rosenberg y. Creswell, Case No. CIV 93-4131, D.S.D., FPC Yankton
This plaintiff in this Biyens action is the executor of a deceased inmate's estate. The inmate
died of cancer after he received treatment from medical staff at FPC Yankton and FMC
Rochester.
The plaintiff s suit was initially dismissed by the District Court for failure to state a claim. The
Eighth Circuit reversed and the plaintiff named additional defendants under F.R.Civ. P. 15(c).
A summary judgment motion was filed challenging the addition of new defendants and asserting
qualified immunity for all of the defendants. After evaluating the relevant medical records and
the expert opinion of Dr. Teresa Jensen from FMC Rochester, Judge John Jones held the

defendants were entitled to qualified immunity. The judge assessed that the defendants did not
know that the inmate was inflicted with cancer at the time they provided him routine treatment
for his sore throat.

PENDING CASES OF INTEREST
Brown v. Pharchem, Case No. 3-95-103, D.Minn., FCI Sandstone
This case has been brought against the BOP and Pharmchem because Pharmchem mistakenly
reported that the plaintiff tested positive for narcotics use. After the BOP learned of
Pharmchem's mistake, the plaintiff's good time was restored and the incident report was
expunged. Apparently Pharmchem is close to settling with the plaintiff for an undisclosed
amount of money. Discovery has been completed and we have communicated to the AUSA
defending the matter that the BOP is not willing to settle the matter and will proceed to trial.
Dunlap v. Reno, Case No. 95-D-2877, D. Col., Florence Complex
The plaintiff in this case, an African-American employee, sued the Attorney General for race
discrimination and retaliation related to his discipline for misconduct. After the United States
filed its motion for summary judgment, counsel for the plaintiff indicated that his client may be
willing to voluntarily dismiss the matter because Mr. Dunlap is a member of the Enmr
class-action settlement.
Perse v. United States, Case No. 96-WY-1739-W, D. Col., FBI Englewood
The plaintiff in this case is the wife of a deceased Colorado Department of Corrections staff
member who died in a rapelling ·accident. BOP staff members were present and the plaintiff has
alleged that their negligence was the cause of her husband's death. The NCRO has researched
various issues related to the "borrowed servant defense," impleader, and designation of
non-parties for purposes of assessing liability. The case is currently in discovery and depositions
have been set up for the BOP staff members.

Gatiher v. Reno, Case No. 95-11076, Fifth Circuit Court of Appeals, FBI Oxford
After losing at both the district court and court of appeals, Mr. Gaither has applied to the U.S.
Supreme Court for a Writ of Certiorari to the U.S. Supreme Court. Mr. Gaither alleged he was
discriminated against and retaliated against by numerous BOP staff members. It appears the
same attorneys who represented him in the lower courts are handling this matter as well.
Loye v. TiWlY, Case No. ,Eighth Circuit Court of Appeals, FBI Waseca
The appellant in this case is a federal inmate who was denied a reduction in his sentence under
18 U.S.C. 3621(e). The district court upheld the BOP's determination that the offense of
Carrying a Firearm During a Drug Trafficking Offense in violation of 18 U.S.C. 924(c)(1) was a
crime of violence under 3621 (e).
Sesler y. Pitzer, Case No. 96-2185, Eighth Circuit Court of Appeals, FPC Duluth
Oral argument was heard by the panel on this case involving a former federal inmate who was

denied early release under 18 U.S.C. 3621(e). Unfortunately, while there has been no official
opinion, it appeared that the panel regarded the matter as moot since the plaintiff is no longer in
the Attorney General's custody.
Johnson v. United States, Case No. 96-C-5708, N.D. Ill., MCC Chicago
Administrator of a deceased inmate's estate is suing the BOP for wrongful death. The inmate
was seen by MCC prior to the time he committed suicide by hanging. Subsequent to the suicide
a "psychological autopsy" was conducted and the psychologist recommended that exposed pipes
be removed from certain cells in the MCC Depositions are scheduled for March 19, 1997.
Parmelee v. True, et ai, Case No. 93-C-7362, N.D. Ill., M.C. Chicago
This case involves claims of excessive force brought by an inmate against employees of the U.S.
Marshal's Service and the BOP. Apparently there was a struggle between Parmelee and USMS
staff in the MCC. When it appeared that the marshals were in danger, the BOP staffmember
intervened. The BOP staff member was subsequently disciplined by the former MCC Warden
even though the USMS staff members felt that his intervention was necessary. DOJ Torts
Branch allowed the BOP employee to receive DOJ representation in spite of the discipline.
Depositions are scheduled for this month.
Moore y. Reno, et aI., Case No. ,D.Col., USP Florence
USP Florence inmate filed a TRO challenging the Ensign Amendment. OGC has accepted the
primary responsibility for defending this action. A declaration was prepared by Florence legal
staff stating that Mr. Moore's central file contained no publication rejection notices or cop-outs
relating to the Ensign Amendment.
RELIGIOUS FREEDOM RESTORATION ACT CASES
Hawpetoss v. Helman, Case No. 96-1328, C.D.lll., FBI Greenville
Plaintiff alleges that because of the BOP's policy prohibiting smoking tobacco while housed in a
segregation unit, he has been deprived of the right to practice his religion as a Native American..

Meyer v. Bureau of Prisons, Case No. 96-3241-CV-S-RGC, W.D. Mo., USMCFP Springfield
Plaintiff complains that his rights under RFRA are being violated because he is being forced to
work on one of his religion's "work proscription days."

CRIMINAL MATTERS
United States V. Carter, Case No. , D. Col., Florence Complex
Inmate Carter was found guilty of three counts of assault on staff. Federal District Court Judge
Danile sentenced Mr. Carter to 92 months for each count to be run consecutive with his current
sentence.

•

ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST

STAFF IRAVEL AND LEAVE
John

OGCMeeting

March 10-14

Daryl

FMC Rochester
Annual Leave

March 13-14
March 31

Dan

Annual Leave
March 3-7 & 10-14
(1/2 days, will be in the office in the afternoons)

Tom

DHO Training

Gwen

None Scheduled

Janet

None Scheduled

Gary

None Scheduled

Claims database WAN to Mary Rose Hagan on. March 3, 1997.
Meyer v. Bureau

March 3-7

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

Kansas City, KS 66101·2492

April 7, 1997
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHA W, Regional Counsel

SUBJECT:

QUARTERLY/MONTHLY REPORT (March 1997)

LITIGATION. CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

JAN
38

JUL

AUG

SEP

OCT

NOV

DEC

JUN

JUL

AUG

SEP

OCT

NOV

DEC

JUN

JUL

AUG

SEP

OCT

NOV

DEC

FEB
MAR APR MAY JUN
22
23
Total new cases for calendar year 83
Pending
342

ADMINISTRATIVE CLAIMS:
JAN
70

FEB .MAR APR MAY
98
95
Total for Calendar Year 263
Pending
415

ADMINISTRATIVE REMEDIES
JAN
176

FEB
MAR APR MAY
180
184
Total for Calendar Year 540

ADVERSE DECISIONS
.Dykstra y. United States, Case No. 95-3193-CV -S-RGC, (W.D.Mo.), USMCFP
The judge in this case previously dismissed the inmate's allegations that the United States and its
employees had failed to protect him from being raped by another inmate. The FTCA portion of
the claim was dismissed after the United States raised the discretionary function exception. With
only a medical malpractice claim surviving~ the United States again motioned for dismissal for
failure to exhaust administrative remedies. The District Court concluded that only "notice- was
required under 28 U.S.C. 2675(a) and the inmate's SF-95 satisfied this requirement "'hen it
included only a single sentence regarding denial of medical treatment. Trial is set for May 28.
1997 with USMCFP Attorney Det:mis Bitz providing the U.S. Attorney's Office assistance.

SETTLEMENTS OR JUDGMENTS
Baramdyka y, BOP4 Case No. 94-N-1777~ (D.Col.)~ Florence
Foreign jail credit case in which the BOP provided an inmate 28 months jail credit. immediate
release, and $1000.00 in settlement. The inmate was released on March 4~ 1997 and signed a
stipulation holding BOP and all stafT harmless thus waiying his right to sue in the future

DECISIONS OF INTEREST

Martin y. Gerlinski, Case No. CIV96-4266, (D.S.D.), FPC Yankton
The court determined that it was with the BOP's discretion and expertise to determine what
crimes were violent under 3621(e). The court cited the recent Northern District of West Virginia
opinion in Pelissero v. Thompson and held that in those instances where there is a "remedial
post-sentencing early release statute" the BOP must make its decision with a cautious eye toward
the public safety and welfare. Additionally, the court pointed out that anoth~ subchapter of
VCCLEA providing remedial opportunities for nonviolent offenders with substance abuse
problems defines a "violent offender" as an offender who possessed a firearm or other dangerous
weapon, ~ 42 U.S.C. § 3796ii-2(1), so it is reasonable for the BOP to use a similar
classification when construing another section ofVCCLEA. Two other favorable 3621 cases
were decided by Judge Piersol in the District of South Dakota; Miller v. Gerlinski and Thorp v.
Gerlinski.
..

Clifton y. Miller, et aI., Case No. 89-CV -3075, (S.D.l11.), USP Marion
In April 1996 the plaintiff prevailed on both his claims under the Constitution and the FTCA. On
March 27, 1997 the court conceded that the plaintiff s FTCA judgment was exclusive and thus
barred any recovery against individual defendants under Bivens.

PENDING CASES OF INTEREST
Love v. Tippy, Appeal No. 96-4224, (Eighth Circuit), FCI Waseca
This appeal involves the BOP's determination that a 18 U.S.C. 924(c) (I) conviction for carrying
a firearm during a drug trafficking offense was a crime of violence for purposes of 18 U.S.C.
43621 (c). Hopefully the Eighth Circuit will rule favorably on the Sessler y. Pitzer appeal which
involved an almost identical set of facts.

Norton y. United States, Case No. 94-C- I 430, N .D. Illinois~ FCI Oxford. .
This medical malpractice claims alleges a failure to timely diagnose cancer which eventually
resulted in the death of an offender. Trial is scheduled to begin in Chicago on April 21. 1997.
The government has obtained the services of an expert witness whose opinion is that there was
no deviation from the standards of community care.
Howard v. United States, Case No. 92- I 515-N, District of Colorado~ FCI Englewood
Judge Nottingham issued an order vacating as moot his preliminary injunction directing Fel
Englewood staff to permit offender Robert Howard to perform certain satanic rituals at Fel
Englewood. The petitioner had received a disciplinary transfer in April~ 1995 to USP
Leavenworth. Judge Nottingham also denied the government's motion for reconsiderution as
moot. The judge ordered the parties to brief four issues: proper venue; the existence or
non-existence of a national BOP policy concerning the performance of satanic rituals within
federal prisons; the govemment"s compelling interests in prohibiting the performance of satanic
rituals; and the least restrictive alternatives for protecting those interests. Regional legal staff

submitted a detailed memorandum of law on the issue of venue, and the absence ofa policy
prohibiting satanic practices inside federal prisons. The assistance additionally noted the
petitioner's failure to request an opportunity to engage in religious activities at USP
Leavenworth. The court was advised that in the absence of specific requests concerning time,
space, and accouterments needed, the government could not articulate interests related to security
and good order.

Lang VI United States, ett aI, Case No. 4-96-54, District of Minnesota, FMC Rochester
This hybrid BiyenslFTCA case alleges that FMC Rochester staff were negligent in housing the
plaintiff with another inmate who assaulted the plaintiff. The Biyens portion of the complaint
alleges retaliatory action. The deposition of several past and current BOP employees were
conducted in March in Iowa, South Dakota and California. The deposition of one witness in
New York was rescheduled when a snow storm closed the Minneapolis airport. Following the
deposition of the former warden at FMC Rochester, the only named Bivens defendant, the
plaintiff has submitted a stipulation to dismiss the Bivens claim without prejudice.
United States v' Wendell Woods, Case No. 4-87-553, District of Minnesota, F.e. Rochester
This case deals with issues related to revocation of a 18 USC 4246 conditional release. The
respondent was on his fourth conditional release when he left his place of residence without
permission in August, 1994. Two years later, the state of Washington released him to a U.S.
Marshals Service detainer. The respondent had been in several state facilities for treatment and
pre-trial confinement related to a state bank robbery charge. The state charges were dismissed
due to the defendant's lack of competency.
The revocation case has already resulted in one published opinion dealing with conditional
release revocation, United States v. Woods, 944 F.Supp. 778 (D. Minn. 1996). A magistrate
judge has issued a report and recommendation (January 7, 1997) recommending revocation and
recommitment. The R & R sets the burden of proof on the government to establish by a
preponderance of the evidence that the petitioner has violated his conditional release and that his
continued conditional release poses a substantial risk of bodily injury to another or serious
damage to the property of another. The Federal Public Defender's Office has filed objections to
the R & R. A reported case on these issues may have an impact on operations not only at
Rochester, but also Springfield and Butner.

RELIGIOUS FREEDOM RESTORATION ACT CASES

Brown v, Feldlkamp, Case No. 94-570-JPG, S.D.lllinois, USP Marion
Th plaintiff in this RFRA case alleges that defendant Feldkamp, USP Ma
Administrator, failed to provide an appropriate and varied Kosher diet fo
Kosher and non-Kosher eating utensils,; stored non-Kosher food with Kc
defamatory remarks about Jewish inmates~ wrongfully removed inmates
and served "rotten" vegetables. The plaintiff seeks relief in the amount (
Marion legal staff is attempting to replace Mr. Feldkamp with the UniteCongress did not intend a separate cause of action for monetary damage

es: mixed
je

er diet:
l.ISP

ling that
duals.

ENSIGN AMENDMENT LITIGATION
Ohm VI Helman, Case No. 96-1531, C.D. Illinois, FCI Pekin
District court has given petitioner until April 30, 1997 to make partial filing fee payment. No
service has been made in this case.

CRIMINAL MATTERS
United States v, Jones, Case No. , (D.Col.), Florence
Inmate Jones assaulted another inmate with a lock in a sock. He pled guilty to simple assault and
possession of contraband on March 13, 1997 to a consecutive 12 month sentence.
United States v, Bates, Case No. , (D. Col.), Florence
Inmate Bates assaulted another inmate with a piece of metal from the USP weight pile. Bates
pled guilty to simple assault and possession of contraband on March 13, 1997 to a consecutive
12 month sentence.
United States v, Holland, Case No. , (D. Col.), Florence
Holland assaulted a staff member and Judge Borchers upheld a proposed 22 month plea
agreement pending further analysis of the inmate's mental condition.

United States y. Rhodes, Case No. , (D. Col.), Florence
Inmate assaulted a dentist at the USP and pled guilty to an assault with a 22 month sentence.
United States v, Chitwood, Case No. , (D.Col), Florence
Inmate pled guilty to the simple assault of two correctional officer. The inmate was sentenced to
24 months, consecutive.
United States y. Ford. Case No. , (D.Col.), Florence
Inmate threw a staff member off the second tier of a unit. The inmate pled guilty to assault and
is set to be sentenced in April.

ADMINISTRATiVE CLAIMS AND OTHER MATTERS OF INTEREST

PERSONNEL ISSUES:
JeffToenges returned to FMC Rochester as institution attorney advisor.
LeeAnn Tufte reported to the regional office in her capacity as paralegal trainee.

u.s. Department of Justice
Federal Bureau of Prisons
North Central Region
Kansas City, KS 66101-2492

April 7, 1997
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

QUARTERLYIMONTHLY REPORT (March 1997)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:
JAN

FEB

MAR

38

22

23

APR

MAY JUN

JUL

AUG

SEP

OCT

NOV

DEC

JUL

AUG

SEP

OCT

NOV

DEC

JUL

AUG

SEP

OCT

NOV

DEC

Total new cases for calendar year 83
Pending
342

ADMINISTRATIVE CLAIMS:
JAN

FEB

MAR APR

70

98 .

95

MAY JUN

Total for Calendar Year 263
Pending
415

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR APR

176

180

184

MAY JUN

Total for Calendar Year 540

ADVERSE DECISIONS
Dykstra v. United States, Case No. 95-3193-CV -S-RGC, (W.D.Mo.), USMCFP
The judge in this case previously dismissed the inmate's allegations that the United States and its

2
employees had failed to protect him from being raped by another inmate. The FTCA portion of
. the claim was dismissed after the United States raised the discretionary function exception. With
only a medical malpractice claim surviving, the United States again motioned for dismissal for
failure to exhaust administrative remedies. The District Court concluded that only "notice" was
required under 28 U.S.C. 2675(a) and the inmate's SF-95 satisfied this requirement when it
included only a single sentence regarding denial of medical treatment. Trial is set for May 28,
1997 with USMCFP Attorney Dennis Bitz providing the U.S. Attorney's Office assistance.

SETTLEMENTS OR JUDGMENTS
Baramdyka v. BOP, Case No. 94-N-1777, (D.Col.), Florence
Foreign jail credit case in which the BOP provided an inmate 28 months jail credit, immediate
release, and $1000.00 in settlement. The inmate was released on March 4, 1997 and signed a
stipulation holding BOP and all staff harmless thus waiving his right to sue in the future.

DECISIONS OF INTEREST
Martin v. Gerlinski, Case No. CIV96-4266, (D.S.D.), FPC yankton
The court determined that it was with the BOP's discretion and expertise to determine what
crimes were violent under 3621(e). The court cited the recent Northern District of West Virginia
opinion in Pelissero v. Thompson and held that in those instances where there is a "remedial
post-sentencing early release statute" the BOP must make its decision with a cautious eye toward
the public safety and welfare. Additionally, the court pointed out that another subchapter of
VCCLEA providing remedial opportunities for nonviolent offenders with substance abuse
problems defines a "violent offender" as an offender who possessed a firearm or other dangerous
weapon, see 42 U.S.C. § 3796ii-2(1), so it is reasonable for the BOP to use a similar
classification when construing another section ofVCCLEA. Two other favorable 3621 cases
were decided by Judge Piersol in the District of South Dakota; Miller v. Gerlinski and Thorp v.
Gerlinski.
Clifton v. Miller, et aI., Case No. 89-CV -3075, (S.D.Ill.), USP Marion
In April 1996 the plaintiff prevailed on both his claims under the Constitution and the FTCA. On
March 27, 1997 the court conceded that the plaintiffs FTCAjudgment was exclusive and thus
barred any recovery against individual defendants under Bivens.

PENDING CASES OF INTEREST
Love v. Tippy, Appeal No. 96-4224, (Eighth Circuit), FCI Waseca
This appeal involves the BOP's determination that a 18 U.S.C. 924(c) (1) conviction for carrying
a firearm during a drug trafficking offense was a crime of violence for purposes of 18 U.S.C.
43621 (c). Hopefully the Eighth Circuit will rule favorably on the Sessler v. Pitzer appeal which
involved an almost identical set of facts.
Norton v. United States, Case No. 94-C-1430, N.D. Illinois, FCI Oxford.

3

This medical malpractice claims alleges a failure to timely diagnose cancer which eventually
resulted in the death of an offender. Trial is scheduled to begin in Chicago on April 21, 1997.
The government has obtained the services of an expert witness whose opinion is that there was
no deviation from the standards of community care.

Howard v. United States, Case No. 92-1515-N, District of Colorado, FCI Englewood
Judge Nottingham issued an order vacating as moot his preliminary injunction directing FCI
Englewood staff to permit offender Robert Howard to perform certain satanic rituals at FCI
Englewood. The petitioner had received a disciplinary transfer in April, 1995 to USP
Leavenworth. Judge Nottingham also denied the government's motion for reconsideration as
moot. The judge ordered the parties to brief four issues: proper venue; the existence or nonexistence of a national BOP policy concerning the performance of satanic rituals within federal
prisons; the government's compelling interests in prohibiting the performance of satanic rituals;
and the least restrictive alternatives for protecting those interests. Regional legal staff submitted
a detailed memorandum of law on the issue of venue, and the absence of a policy prohibiting
satanic practices inside federal prisons. The assistance additionally noted the petitioner's failure
to request an opportunity to engage in religious activities at USP Leavenworth. The court was
advised that in the absence of specific requests concerning time, space, and accouterments
needed, the government could not articulate interests related to security and good order.
Lang v. United States, et. ai, Case No. 4-96-54, District of Minnesota, FMC Rochester
This hybrid BivenslFTCA case alleges that FMC Rochester staff were negligent in housing the
plaintiff with another inmate who assaulted the plaintiff. The Bivens portion of the complaint
alleges retaliatory action. The deposition of several past and current BOP employees were
conducted in March in Iowa, South Dakota and California. The deposition of one witness in
New York was rescheduled when a snow storm closed the Minneapolis airport. Following the
deposition of the former warden at FMC Rochester, the only named Bivens defendant, the
. plaintiffhas submitted a stipulation to dismiss the Bivens claim without prejudice.
United States v. Wendell Woods, Case No. 4-87-553, District of Minnesota, F.C. Rochester
This case deals with issues related to revocation of a 18 USC 4246 conditional release. The
respondent was on his fourth conditional release when he left his place of residence without
permission in August, 1994. Two years later, the state of Washington released him to a U.S.
Marshals Service detainer. The respondent had been in several state facilities for treatment and
pre-trial confinement related to a state bank robbery charge. The state charges were dismissed
due to the defendant's lack of competency.
The revocation case has already resulted in one published opinion dealing with conditional
release revocation, United States v. Woods, 944 F.Supp. 778 (D. Minn. 1996)~ A magistrate
judge has issued a report and recommendation (January 7, 1997) recommending revocation and
recommitment. The R & R sets the burden of proof on the government to establish by a
preponderance of the evidence that the petitioner has violated his conditional release and that his
continued conditional release poses a substantial risk of bodily injury to another or serious
damage to the property of another. The Federal Public Defender's Office has filed objections to
the R & R. A reported case on these issues may have an impact on operations not only at
Rochester, but also Springfield and Butner.

RELIGIOUS FREEDOM RESTORATION ACT CASES
.

.

Brown v. Feldlkamp, Case No. 94-570-JPG, S.D.lllinois, USP Marion

4
Th plaintiff in this RFRA case alleges that defendant Feldkamp, USP Marion Food
appropriate and varied Kosher diet for Jewish inmates; mixed
Administrator, failed to provide
Kosher and non-Kosher eating utensils,; stored non-Kosher food with Kosher food; made
defamatory remarks about Jewish inmates; wrongfully removed inmates from the Kosher diet;
and served "rotten" vegetables. The plaintiff seeks relief in the amount of $1 ,000,000. USP
Marion legal staff is attempting to replace Mr. Feldkamp with the United States by arguing that
Congress did not intend a separate cause of action for monetary damages against individuals.

an

ENSIGN AMENDMENT LITIGATION
Ohm y. Helman, Case No. 96-1531, C.D. Illinois, FCI Pekin
District court has given petitioner until April 30, 1997 to make partial filing fee payment. No
service has been made in this case.

CRIMINAL MATTERS
United States v. Jones, Case No. , (D. Col.), Florence
Inmate Jones assaulted another inmate with a lock in a sock. He pled guilty to simple .assault and
possession of contraband on March 13, 1997 to a consecutive 12 month sentence.
United States v. Bates, Case No. , (D.Col.), Florence
Inmate Bates assaulted another inmate with a piece of metal from the USP weight pile. Bates
pled guilty to simple assault and possession of contraband on March 13, 1997 to a consecutive 12
month sentence.
United States v. Holland, Case No. , (D. Col.), Florence
Holland assaulted a staff member and Judge Borchers upheld a proposed 22 month plea
agreement pending further analysis of the inmate's mental condition.

United States v. Rhodes, Case No. , (D. Col.), Florence
Inmate assaulted a dentist at the USP and pled guilty to an assault with a 22 month sentence.

United States v. Chitwood, Case No. , (D.Col), Florence
Inmate pled guilty to the simple assault of two correctional officer. The inmate \\'as sentenced to
24 months, consecutive.
United States v. Ford, Case No. , (D. Col.), Florence
Inmate threw a staff member off the second tier of a unit. The inmate pled guilty to assault and
is set to be sentenced in A pri 1.
ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST
PERSONNEL ISSUES:
Jeff Toenges. retuined to FMC Rochester as institution attorney advisor.

U.S. Department of Justice

Federal Bureau of
Prisons

North Central RegiaI').:

Kansas City, KS 66101-2492

May 9,1997
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

MONTHLY REPORT (A.prilI997)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

JAN
38

MAR APR MAY JUN
FEB
JUL
23
39
22
Total new cases for calendar year 122

AUG

SEP

OCT

NOV

DEC

ADMINISTRATIVE CLAIMS:
JAN
70

MAR APR MAY
FEB
95
66
98
Total for Calendar Year 329
Pending
430

JUN

JUL

AUG

SEP

OCT

NOV

DEC

JUN

JUL

AUG

SEP

OCT

NOV

DEC

ADMINISTRATIVE REMEDIES
JAN
176

MAR APR MAY
FEB
184
196
180
Total for Ca lendar Year 736

ADVERSE DECISIONS
Norton v. United States, Case No. 94-C-1430, (N.D. Ill.), FCI Oxford
On April 28, 1997, after a four-day bench trial , the district court found in favor of the widow ofa
former BOP inmate in the amount of $678,477.67. This total included medical and funeral
expenses, loss oflife expectancy, pain and suffering, and wrongful death. The court found that
the inmate, James Norton, had incurable cancer at the time he entered BOP custody, but given
the responsiveness Mr. Norton had to cancer treatment, a more timely diagnosis would have
extended the period of his life.
At trial the experts for the Unite States testified that BOP medical staff did not deviate from the
standard of care and that Mr. Norton's gall stones masked what was probably the real cause of
his pain, invasion of his lung cancer into his bones. These experts also stated that Mr. Norton ' s
cancer had begun to metastasize by the time he came into BOP custody. The AUSA has taken
the position that no appeal should be made since the judge based his findings of facts on the
opinion of the plaintiffs experts to which the appeals court will be extremely deferential. We
are currently preparing a recommendation as to appeal.

SETTLEMENTS OR JUDGMENTS
Sesler v. Pitzer, 110 F .3d 569 (8th Cir. 1997), FMC Rochester
The Court of Appeals affirmed the district court's denial of an offender's habeas corpus petition

Dunn v Sei ter et aI. , S.D. Jll Case No. 95-928-JPG
Johnson v. Seiter. et aI. , S.D. III Case No.96-396-JPG
Huffman v. Hawk, et al.,S.D. Jll Case No. 96-629-JPG
McCoy v. Nelson. et aI. , S.D. Jll Case No.96-790-JPG
Freiberller v. Seiter. et aI., S.D. III Case No. 96-028-JPG
Williams v. Pitts, et al" S.D. Jll Case No 96-5 97-JPG
These similar cases contain allegations agai nst staff at FCI Greenville all eging excessive use of
force in the aftermath of the October, 1995 disturbance. Representation issues have been
resolved as to Okai v Verefurth. et al. and Ty ler v. Verefurth, et a!..
In Okai v Verefurth. et aI. , four defendants were approved for representation. The four
defendants are being represented by Jesselyn Brown, Consti tuti onal Torts Branch, Civil
Division. Rick Hess and Neil Perryman are providing representati on to the two defendants
denied representation. In Tyler v. Verfurth, et aI. , four of the defendants are being represented by
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. NCRO recommendations have been submitted in Smith v. King, et al. and a
decision is currently pending.

As to the remainder of the cases, requests for DOJ representation and the issuance of NCRO
recommendations are ongoing processes. In all of these matters, extensive time is being
dedicated to document review including OIA Reports and Institution records. The matter is
complicated because the agency took administrative disciplinary action against some of the
defendants for conduct which in most cases did not involve the respective plaintiffs. We have
been working closely with DOJ staff regarding representati on issues and will continue to do so.

Gil v. Medical Director. et aI., Case No. 95-CV-5217 , (N. 0.111.), MCC Chicago
Inmate alleges that MCC medical staff ignored his ulcer for several months in 1993.
This indifference resulted in two emergency medical trips to community for surgery.
The court has appointed counsel in this case.

RELIGIOUS FREEDOM RESTORATION ACT CASES
None.
ENSIGN AMENDMENT LITIGATION
None.

CRIMINAL MATTERS

OCTOBER DISTURBANCE CASES;
As of May 1, 1997, U.S. Attorney's Offices in three districts (Southern District of Illinois,
Western District of Wisconsin and Colorado) have filed charges against nineteen offenders in the
aftermath of the October, 1995 disturbances. Sixteen offenders pleaded guilty or were found·
guilty. Two offenders are awaiting trial, and one offender's charges were dismissed by the
government.
United States v. Holland, Case No. ,(D. Col.), Florence Complex
An inmate assaulted a staff member and agreed to a 22 month sentence but the judge wants more
information about the inmate's mental status before he will agree to plea. Sentencing now
scheduled for May 1997
United States v. Cooke, Case No. ,(D. Col.), Florence Complex
Inmate was found guilty of possessing 1.8 pounds of marijuana and pled guilty to felony
possession. No sentencing data as of this writing.
United States v. Melgar, Case No. 97-10006, (C.D.Ill.), FCI Pekin
Inmate pled guilty to assault on a staff member and is expected to be sentenced in July 1997.
A W Rick Stiff will testify as to the severity of such conduct in a prison environment.
Illinois v. Kenneth Jones, Case No. __, Circuit Court of Bond County, Illinois, FCI Greenville.
FCI Greenville inmate Jones and his female visitor were observed passing contraband in the FeI
visiting room. When narcotics were found, the case was referred to the FBI. The U.S.
Attorney's Office declined prosecution. Because of the concurrent jurisdiction at FCI
Greenville, Jones and the visitor have been charged in state court.

ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST
Regional legal staff participated in a Joint Legal Training with Mid-Atlantic Regional legal staff
in Durham, North Carolina. A diverse number of significant legal issues were addressed.

UPCOMING HEARINGS OR TRIALS
Two significant trials will begin in the North Central Region. USA v. Storey is a capital case
involving an inmate on inmate homicide. Trial is scheduled to begin in Topeka, Kansas on May
19, 1997. It is projected that NCRO legal staffwill attend each day of the trial. Dykstra y.
United States is an FTCA action alleging a failure by BOP medical staff to treat Post Traumatic
Stress Disorder following an inmate on inmate assault. Trial is scheduled to begin May 28, 1997
in Springfield, Missouri.

PERSONNEL ISSUES:
Tom Mueller, NCRO Honor Program Attorney, was recently selected to fill an attorney vacancy

I
at USP Allenwood. Tom has a reporting date of July 22, 1997.

STAFF TRAVEL AND LEAVE
John

None

Daryl

None

Dan

None

Tom

House Hunting
Allenwood area

Gwen

None

Janet

None

Gary

None

LeeAnn

Paralegal Studies
Denver, Colorado

Claims database WAN to Mary Rose Hagan on May 6, 1997.

May 27 - 30

April 28 -May 9

u.s. DEPARTMENT OF JUSTICE
Federal Bureau of Prisons
North Central Region;
Office of Regional Counsel
Kansas City, KS 66101
June 6.. 1997
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW . Regional Counsel

SUBJECT:

MONTHLY REPORT (May. 1997)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:
JAN
38

FEB
22

MAR
23

APR
39

MAY
28

JUN

JUL

AUG

SEP

OCT

NOV

DEC

JUN

JUL

AUG

SEP

OCT

NOV

DEC

JUN

JUL

AUG

SEP

OCT

NOV

DEC

Total new cases for calendar year 150

ADMINISTRATIVE CLAIMS:
JAN
70

FEB
98

MAR
95

APR
66

MAY
95

Total for Calendar Year 428
Pending
424
ADMINISTRATIVE REMEDIES
JAN
176

FEB
180

MAR
184

APR
196

MAY
207

Total for Calendar Year 943

•

ADVERSE DECISIONS

None this period

SETTLEMENTS OR JUDGMENTS
See Dunlap v. Reno in Employment Law Section

DECISIONS OF INTEREST
None this period.

PENDING CASES OF INTEREST
Hudson v. Helman, Case No. 97-1154 (7th Cir), FCI Pekin
\

Inmate Hudson filed an appeal of a habeas denial with the Court of Appeals. The court requested
financial information, and when Hudson failed to produce the information, dismissed the appeal
but ordered the institution to withdraw $105.00 from Hudson's commissary account. Hudson
refused to execute the necessary paperwork to authorize the withdrawal of funds. The district
court (C.D. Illinois) was vested with the task of collecting the filing fee. The court issued an
order to show cause why the Warden at FCI Pekin did not withdraw the money. A response is
due on or before June 17, 1997. Staff in the Correctional Issues Branch have been consulted
about this issue.
Perse v. United States, Case No. 96-WY-1739-W., D. Colorado, FCI Englewood
The plaintiff in this case is the wife of a deceased Colorado Department of Corrections (CDOC)
staff member who died in a rapelling accident. BOP staff members were present to assist the
CDOC in conducting its training program and the plaintiff has alleged that their negligence was
the cause of her husband's death. Discovery is complete, depositions having been taken of
various BOP staff members. Experts in the area of rappelling and economics have submitted
opinions on behalf of both parties outlining liability and damages respectively. Plaintiffs
rappelling expert has provided a very strong opinion pointing toward BOP staff negligence in the
accident. The "borrowed servant defense fl will be asserted at trial in an attempt to assign liability
to the CDOC. Additionally, in the event of a finding of United States liability, indemnification
by the CDOC may be available pursuant to a licensing agreement between the CDOC and the
USAF, the premises upon which the incident occurred.
Biyens actions arising from the October 1995 Disturbance at FC} Greenville:

•

Okai v. Verefurth. et a1., S.D. III Case No. 96-47-JPG
Tyler v. Verefurth. et aJ., S.D. III Case No.96-46-JPG
Smith v. King. et aI., S.D. III Case No. 96-507-JPG
Dunn v. Seiter. et aI., S.D. III Case No. 95-928-JPG
Johnson v. Seiter. et al.., S.D. III Case No.96-396-JPG

Huffman v. Hawk et al. ,S.D. III Case No. 96-629-.lPG
McCoy v. Ne lson. et aI. , S.D. III Case No.96-790-JPG
Freiberger v. Seiter. et aI. , S.D. III Case No. 96-028-JPG
Williams v. Pitts. et aI., S.D. III Case No. 96-597-JPG
Larkin v. Galloway eL aI., S.D. III Case No . 96-607-JPG
These ten similar cases contain a ll egations against staffat FCI Greenville alleging excessive use
of force in the aftermath of the October, 1995 di sturbance. Representation issues have been
resolved as to Okai v. Verefurth. et al. and Tvler v. Verefurth. et al..
In Okai v Verefurth. et aI. , four defendants were approved for representation. The four
defendants are being represented by .lesse lyn Brown, Constitutional Torts Branch. Civil
Division. Rick Hess and Ne il Perryman are providing representation to the two defendants
denied representation.
In Tyler v. Verfurth. et aI., four of the defendants are being represented by 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.
In Smith v. King. et aI., one defendant has been granted representation and is being represented
by the U.S. Attorney's Office for the Southern District of Illinoi s. Four defendants were denied
representation.
As to the remainder of the cases, requests for DO.l representation and the issuance ofNCRO
recommendations are ongoing processes. In all of these matters, extensive time is being
dedicated to document rev iew including OIA Reports and institution records. The matter is
complicated because the agency took administrative disciplinary action against some of the
defendants for conduct which in most cases did not involve the respective plaintiffs. We have
been working closely with DOJ staff regarding representation issues and will continue to do so.

RELIGIOUS FREEDOM RESTORATION ACT CASES
None this period.

ENSIGN AMENDMENT LITIGATION
Amatel. Moore and Levitan v, Reno, Case No. 96-02774, 96-02790, 97-00475, D.D.C., Florence
Complex
Several inmates that the Ensign Amendment is facially unconstitutional. The case is being
defended by Central Office OGC.

EMPLOYMENT LAW LITIGATION
Thomas v. Reno, Case No. 97-D-708, MSTC, D.Colorado
Mr. Thomas, a rehired annuitant, and former Associate Warden, now alleges he was removed by
the Bureau because of age discrimination. This office recently received summary judgment on
another case Mr. Thomas filed in the U.S. District of Colorado (Thomas v. Reno, 95-S-1180).
Mr. Thomas, who is litigating the matter on his own, is seeking backpay and reinstatement.
Lozano v. Reno, Case No. 95-5-2661, FCI Englewood, D. Colorado
This case is set for a four-day trial on February 9, 1998. The plaintiff in this case was a
probationary correctional officer who was removed from his position for false statements in
connection with his pre-enlployment interview and SF -1 71. After being removed from his
position Mr. Lozano developed a serious medical condition that has shortened his life
expectancy. Mr. Lozano now claims that but-for his removal he would have carried health
insurance and thus not incurred the extraordinary medical costs he now has to pay personally.
Pedersen y. Reno, Case No. 5-95-304, FPC Duluth/Unicor, D. Minn.
Unless there is a settlement, this case will be tried in late September or early October. The
plaintiff in this case is a current DHO who alleges that the BOP discriminated and retaliated
against her through the use of its own Grade Guidelines for Managers. She has brought suit
under the EPA and Title VII. At last count she was seeking approximately $40,000 in back-pay
and interest and $50,000 in attorney's fees.

Dunlap v. Reno, Case No. 95-D-2877, Florence Complex, D. Colorado
This case was recently dismissed by the plaintiff. The plaintiff had alleged that he was retaliated
against and discriminated against by the BOP and sought and undisclosed sum of compensatory
damages. The plaintiff had successfully argued against his removal before the MSPB and sought
damages for the manner in which BOP OIA conducted its background investigation and his
placement on home duty. The United States filed a motion for summary judgment and argued
that he was obligated to bring his claim before the MSPB and was barred from seeking damages
in federal court. The plaintiff opposed the motion, but before receiving a ruling from the court
notified the U.S. Attorney's Office that his damages were encompassed in the settlement
agreement made in the Enzor v. Reno case. After receiving the motion, the district court judge
approved the voluntary dismissal.

•

CRIMINAL MATTERS
United States v. Storey, D. Kansas, USP Leavenworth

Storey had been indicted for the First Degree Murder of another inmate in a recreation pen at
USP Leavenworth. The Attorney General had authorized seeking the death penalty. After all
preparation had been done for trial , defense counsel proposed a plea of Second Degree Murder.
The proposal was conveyed to the BOP and the AUSA was advi sed the agency had no
objections. A plea was entered. Sentencing is set for August, 1997. Storey is currently 34 years
ofage. Hi s current release date from hi s two bank robbery and escape convictions is 2015. A
high range sentence of27 years will be the equivalent ofa life sentence.
United States v. Ricketts and Jones, FCI Greenville, S.D. Illinois
Rickets and Jones are charged with rioting and Jones with assault as a result of conduct from the
October. 1995 di sturbance. Trial begins in East SI. Louis on June 9, 1997.
ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST

-.John Shaw led a team that conducted the OGe's latest Legal Services Management Review.
The review was conducted at the MCC New York and went very well.
-Dan Eckhart provided presentations on the Department' s deadly use of force policy at Camp
Ripley during annual Sort Training.
-Daryl Kosiak accompani ed two trial attorneys from the DOJ Torts Branch to FCI Greenville
and FC I Oxford to interview witnesses and defendants and depose the pl aintiff in the case of
Okai v. Verefurth.
-Tom Muell er went to the Allenwood, Pennsy lvania area for hi s house hunting trip.
U1)COMING HEARINGS OR TRIALS

PERSONNEL ISSUES:

Walter Pirnot is sched ul ed to begin duties as a legal intern. Mr. Pirnot recentl y completed his
second year of law school at the University of Missouri, Kansas City School of Law.
NCR Region and institututi on legal staff participated in the joint MAROINCRO legal training in
Durham. North Caro lina. Feedback from participants indicated the training was an excellent
learn ing experience.

•

ST AFF TRAVEL AND LEA VE
John

MCFP Springfield

June 23 - 25

Daryl

Annual Leave

June 19,20 & 23

Dan

Sentence Computation
MSTC
Annual Leave

June 2 - 5
June 20

Annual

June 16-20

Tom
Gwen
Janet
Gary
LeeAnn

Claims database WAN to Mary Rose Hagan on June 6, 1997.

,

U.S. DEPARTMENT OF JUSTICE
Federal Bureau of Prisons
North Cen tral Region
Office of Regional Counsel
Kansas City, KS 66101
July 3, 1997
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

MONTHLY REPORT (June, 1997)

LITIGATION. CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS

,

LITIGATION:
JAN
38

SEP

OCT

NOV

DEC

FEB
MAY JUN
JUL
AUG SEP
MAR APR
98
•
95
66
95
Total for Calendar Year 428
* June Claims unavailable due to tort data base failure

OCT

NOV

DEC

OCT

NOV

DEC

MAY JUN
FEB
MAR APR
27
22
23
39
28
Total new cases for calendar year 177

JUL

AUG

ADMINISTRATIVE CLAIMS:
JAN
70

ADMINISTRATIVE REM EDIES
.IAN
176

FEB
MAR APR
MAY JUN
180
184
196
226
124
Total for Calendar Year 1,112

JUL

AUG

ADVERSE DECISIONS

SEP

Puccini v. USA. et ai, N.D. Ill. Case No. 96 C 2602, FCI Pekin
Plaintiff filed a hybrid Bivens/FTCA action alleging staff failed to release her in a timely
fashion. The court had previously granted a habeas petition directing the BOP to grant the
plaintiff an additional 147 days of jail credit. The additional jail credit resulted in a late release.
The BOP argued, and continues to believe her sentence was computed correctly. The district
court granted summary judgment to five BOP employees: Ed Crosley, Denise Hilliard-Winston,
Marvin Lutts, Dave Helman and Steven J. Robinson. The court concluded that in 1992 the·law
was, and still is, not clearly established. The court also concluded that BOP staff applied BOP
policy in denying the credit. As for the FTCA action, the court concluded that the 2680(h)
exception to the exception for false imprisonment committed by investigative or law
enforcement officers was not applicable because in calculating sentences, BOP officials are not
acting as investigative or law enforcement officers.

PENDING CASES OF INTEREST
Garrett v. Hawk, Case No. 96-1429, 10th Cir. Court of Appeals, FCC Florence
The district court dismissed sua sponte a Bivens action for failure to exhaust administrative
remedies. On appeal, the Court of Appeals requested a brief from the government as to whether
the exhaustion requirement of the PLRA (42 USC 1997e(a) applies to Bivens actions. Jenifer
Grundy and Dan Eckhart are working with AUSA Marilyn Eskeson. Barbara Herwig in DOJ has
been contacted for input.

FC] Greenville Dsiturbance Cases. The following eleven similar Bivens cases contain
allegations against staff at FCI Greenville alleging excessive use of force in the aftermath of the
October, 1995 disturbance.
Okai v. Verefurth. et aI., S.D. III Case No. 96-47-JPG
Tyler v. verefurth, et al.,
S.D. III Case No.96-46-JPG
Smith v. King. et aI.,
S.D. III Case No. 96-507-JPG
Freiberger v. Seiter. et aI.,
S.D. III Case No. 96-028-JPG
Johnson v. Seiter. et aI.,
S.D. III Case No.96-396-JPG
Huffman v. Hawk, et aI.,
S.D. III Case No. 96-629-JPG
McCoy v. Nelson, et aI.,
S.D. III Case No.96-790-JPG
Williams v, Pitts, et al.,
S.D. III Case No. 96-597-JPG
Dunn v. Seiter. et al.,
S.D. III Case No. 95-928-JPG
Larkin v, Galloway. et. aI.,
S.D. III Case No. 96-607-JPG
Stewart y. Seiter, et. aI.,
S.D. III Case No 96-983-JPG
The Department of Justice has been closely examining these actions on a case by case basis to

determine whether granting representation to individual BOP employees is in the best interests of
the United States. In all of these matters, extensive time is being dedicated to document review
including OIA Reports and Institution records by both the DOJ - Constitutional Torts Branch and
the NCRO. The matter is complicated because the agency took administrative disciplinary
action against some of the defendants for conduct which in most cases did not involve the
respective plaintiffs. We have been working closely with DOJ staff regarding representation
issues and will continue to do so.
Representation issues have been resolved as to Okai v. Verefurth, et al., Tyler v. Verefurth, et
BL., Smith v. King, et al., and Freiberger v, Seiter, et al..
In Okai v. Verefurth, et aI., four defendants were approved for representation. The four
defendants are being represented by Jesselyn Brown, Constitutional Torts Branch, Civil
Division. Rick Hess and Neil Perryman are providing representation to the two defendants
denied representation. Discovery is c0111plete and this case is currently in the prc-trial stagc. Thc
court has appointed counsel for the plaintiff.
In Tyler v. Verfurth, et aI., four of the defendants are being represented by 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.
This case is currently in the discovery stage.
In Smith v! King, et aI., one defendant has been granted representation and is being represented
by the U.S. Attorney's Office for the Southern District ofI11inois. Four defendants were denied
representation. A motion has been filed for summary judgment as to the one employee granted
representation. Additionally, the plaintiff has retained counsel and amended his complaint
naming additional staff who currently are requesting representation.
In Freiberger y. Seiter, et aI., the one named defendant was denied representation.
As to the remainder of the cases, requests for DOJ representation and the issuance ofNCRO
recommendations are ongoing processes.

RELIGIOUS FREEDOM RESTORATION ACT CASES
DeNoyer v. Reno, et ai, D. Colorado, ADX Florence
Native American inmate alleges discrimination in provision of religious activities at the ADX.

ENSIGN AMENDMENT LITIGATION
Amatel, Moore and Leyitan v, Reno, DDC Case, FCC Florence Case

CRIMINAL MATTERS

United States v. Ricketts and Jones, FC! Greenville, S.D. Illinois
Ricketts and Jones are charged with rioting, mutiny and assau lt as a resu lt of conduct from the
October, 1995 disturbance. Tria! began in East S1. Loui s on June 9, 1997 and lasted seven days.
Both were convicted ofriot and mutiny. Jones was also conv icted of two counts of assault. Both
were acquitted of two other assault charges. Sentencing is scheduled for September 19, 1997.
United States v. Tim McVeigh, FC! Englewood, D. Colorado
Following the jury verdict and recommendation of death, Mr. McVeigh was returned to FC!
Englewood pending sentencing. Staff are working with the prosecution team and U.S.
Attorney ' s Office on issues of survei llance, outgoing social mail, and psycho logical intervention.
ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST
Davis, Gary L., T-NCR-96-856, USP Leavenworth
Claimant alleges BOP staff failed to protect him from another inmate. Staff were aware that the
claimant and the assailant had quarreled in the SHU. After the two were released, claimant
attempted to resolve the issue. Claimant was stabbed by the assail ant several times with a prison
made weapon . Claimant seeks $500,000 in damages.
Mitchell, William, NCR 96-754,
Inmate seeks $50,000 under FTCA for violations of RFRA. Claimant al leges BOP failed to
follow policy concerning cleaning of common fare uten sil s and that cond im ents are not Kosher.
Trays are washed separately from regular trays and condiments are Kosher.

UPCOMING HEARlNGS OR TRIALS

PERSONNEL ISSUES
Tom Mueller moves to Pennsylvania to assume hi s duties at All enwood. He wi ll be missed.
Walter Pirnot has began his duties as a legal intern. Mr. Pimot recently completed his second
year of law school at the University of Missouri , Kansas Ci ty School of Law.

STAFF TRA VEL AND LEAVE
John

Annual Leave

July 3

I

Daryl
Sick Leave
Dan
Tom
Gwen
Janet
Gary
Lee Ann

Annual Leave
July 9 & 10
None Scheduled
Sick Leave
Adminstrative Leave
None Scheduled
None Scheduled
None Scheduled
Annual leave

July 3, 7 8 & 11

July 7
July 17, 18

June 30 - July 3

Claims database NOT WAN'D to Mary Rose Hagan due to failure of our tort data base

u.s. DEPARTMENT OF JUSTICE
Federal Bureau of Prisons
North Central Region
Office of Regional Counsel
Kansas City, KS 66101
August 8, 1997
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

MONTHL Y REPORT (July, 1997)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:
JAN
38

AUG

SEP

OCT

NOV

DEC

JUL
151

AUG

SEP

OCT

NOV

DEC

JUL
164

AUG

SEP

OCT

NOV

DEC

JUL
FEB
MAR APR MAY JUN
25
27
22
23
39
28
Total new cases for calendar year 202

ADMINISTRATIVE CLAIMS:
JAN
70

FEB
MAR APR
MAY
98
66
95
95
Total for Calendar Year 575
Pending
430

JUN

*

ADMINISTRATIVE REMEDIES
JAN
176

FEB
MAR APR MAY JUN
180
184
196
226
124
Total for Calendar Year 1,250

ADVERSE DECISIONS

USA v. McAllister, D. Minn. Case No. 4-93-836, FMC Rochester
McAllister is a 18 USC 4246 committee at FMC Rochester. In 1991 he killed a police officer
and wounded two other persons while at the Walter Reed Military Hospital. He petitioned for
discharge and challenged a staff decision to involuntary medicate him. The Magistrate Judge
made two separate rulings on the case. In the first, Magistrate Judge Mason concluded, and
Judge Doty affirmed, that a person committed under 18 USC § 4246 bears the burden of
showing, by a preponderance of the evidence, that he has recovered from his mental disease or
defect to the extent that he can be conditionally or outright released. USA v. McAllister, 963
F.Supp. 829 (D. Minn. 1997). The court denied the petitioner's release from commitment.
In a Report and Recommendation dated several days later, the Magistrate Judge concluded the
BOP's policy on involuntary medication which permits medication of those determined to be
"gravely disabled" violates the Due Process Clause unless "gravely disabled" is interpreted to
include danger to self or others. The District Court affirmed over the government's objections,
and remanded the matter back to the agency. Because there is no final order under 28 USC §
1291, there is no order to appeal from. An adverse opinion memorandum was forwarded to the
Litigation Branch. (DJK)

SETTLEMENTS OR JUDGMENTS

DECISIONS OF INTEREST
Hawpetoss v. Helman, C.D. Ill. Case No. 96-1328, FCI Pekin
Inmate Hawpetoss filed a Bivens action against FCI Warden Dave Helman alleging institution
policy prohibiting smoking of a ceremonial Naive American pipe violated the offender's rights
under the First Amendment, RFRA and the American Indian Religious Freedom Act. The court
granted summary jUdgment to the defendant on the basis of: (1) no exhaustion of administrative
remedies as required by the PLRA; (2) insufficient allegations of personal involvement; and (3)
on the merits because prohibiting smoking in the SHU at Pekin furthered a legitimate
governmental purpose and because smoking the pipe was typically a group activity and not an
individual one. It should be noted that the plaintiff failed to respond in any manner to the
government's motion for summary judgment. (Djk)
Newlin v. Helman, Case No. 96-4229, 7th Circuit, FeI Pekin

•

The Seventh Circuit Court of Appeals consolidated this case with two filed by offenders in state
custody. The issue in all three cases was the filing fee provisions of the PLRA. The limited
holding of Newlin's case is that a habeas corpus petition under 28 USC 2241 is a civil action and
covered by PLRA. In a companion case from the Illinois Department of Corrections, the court

held that the prisoner's authorization is not necessary to withdraw money from a trust account to
pay a the filing fee under PLRA.
We believe that this portion of the opinion may not apply to the Bureau of Prisons in light of the
conflict between the PLRA and the terms of the Congressionally created trust for federal
offenders. (DJK)

PENDING CASES OF INTEREST
Suarez v. Scott, et ai, D. Kansas Case No. 95-3407-KHV, USP Leavenworth
Suarez is a Mariel Cuban detainee who alleges staff left him in four point restraints for over 24
hours without food, water and opportunities to relieve himself. The court has appointed counsel
and denied a motion for summary judgment for 10 of the 21 defendants. Discovery has begun in
this case. (DJK)

FCI Greenville Cases
The following eleven similar Bivens cases contain allegations against staff at FeI Greenville
alleging excessive use of force in the aftermath of the October, 1995 disturbance.

Okai v. Verefurth, et aI., S.D. III Case No. 96-47-JPG
Tyler v. Verefurth, et aI.,
S.D. III Case No.96-46-JPG
Smith v. King, et aI.,
S.D. III Case No. 96-507-JPG
Freiberger v. Seiter, et aI.,
S.D. III Case No. 96-028-JPG
Johnson v. Seiter, et al.,
S.D. III Case No.96-396-JPG
Huffman v. Hawk, et al.,
S.D. III Case No. 96-629-JPG
McCoy v. Nelson, et aI.,
S.D. III Case No.96-790-JPG
Williams v. Pitts, et aI.,
S.D. III Case No. 96-597-JPG
Dunn v. Seiter, et aI.,
S.D. III Case No. 95-928-JPG
Larkin v. Galloway, et. aI.,
S.D. III Case No. 96-607-JPG
Stewart v. Seiter, et. aI.,
S.D. III Case No 96-983-JPG
The Department of Justice has been closely examining these actions on a case by case basis to
determine whether granting representation to individual BOP employees is in the best interests of
the United States. In all of these matters, extensive time is being dedicated to document review
including OIA Reports and Institution records by both the DOJ - Constitutional Torts Branch and
the NCRO. The matter is complicated because the agency took administrative disciplinary
action against some of the defendants for conduct which in most cases did not involve the
respective plaintiffs. We have been working closely with DOJ staff regarding representation
issues and will continue to do so.
Representation issues have been resolved as to Okai v. Verefurth, et al., Tyler v. Verefurth, et
aI., Smith v. King, et al., and Freiberger v. Seiter, et al ••

In Okai v. Verefurth, et al., four defendants were approved for representation. The four
defendants are being represented by Jesselyn Brown, Constitutional Torts Branch, Civil
Division. Rick Hess and Neil Perryman are providing representation to the two defendants
denied representation. Discovery is complete and this case is currently in the pre-trial stage. The
court has appointed counsel for the plaintiff.
In Tyler v. Verfurth, et al., four of the defendants are being represented by 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.
This case is currently in the discovery stage.
In Smith v. King, et al., one defendant has been granted representation and is being represented
by the U.S. Attorney's Office for the Southern District of Illinois. Four defendants were denied
representation. A motion has been filed for summary judgment as to the one employee granted
representation. Additionally, the plaintiff has retained counsel and amended his complaint
naming additional staff who currently are requesting representation.
In Freiberger v • Seiter, et aI., the one named defendant was denied representation.
As to the remainder of the cases, requests for DOJ representation and the issuance ofNCRO
recommendations are ongoing processes.
OGC attorney Mary Benning will spend some time in the regional office familiarizing herself
with the issues and facts in these cases. A meeting is scheduled with DOJ staff for August 26,
1997.

RELIGIOUS FREEDOM RESTORATION ACT CASES
No new cases.

ENSIGN AMENDMENT LITIGATION
No new cases.

CRIMINAL MATTERS
United States v. Zambrana, FCI Oxford, W.D. Wisconsin
Tina Zambrana, the spouse of FCI Oxford inmate John Zambrana, delivered at least eight
balloons containing an unknown quantity of illegal drugs in the visiting room at FCI Oxford on

March 1,1997. Using the telephone to pass coded messages, Mrs. Zambrana brought in another
nine balloons of narcotics, including 3.0 grams of heroin and 9.4 grams of marijuana.
John Zambrana pleaded guilty to one count of conspiracy to provide prohibited objects within a
federal correctional facility. It is expected he will receive a sentence between 8 - 9 years. Tina
Zambrana had pleaded guilty to conspiracy and was cooperating with officials in their case
against her husband. Mrs. Zambrana is facing a 2 - 3 year prison sentence. Sentencing is
scheduled for September 25, 1997.

United States v. Terry Nichols, D.Colorado, FCI Englewood
The defense team has asked Judge Mastch for an order allowing them to bring video cameras
into FCI Englewood to film the loving relationship between Nichols and his family. Institution
staff have worked this out with the defense team. Both Nichols and NcVeigh have filed motions
seeking to prevent the BOP from copying their social mail and asking they be permitted to send
social mail out sealed.

ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST
None this month.

UPCOMING HEARINGS OR TRIALS
None this month.

PERSONNEL ISSUES
Angie Buege (FCI Sandstone) and Janice Bonneville (FCI Pekin) are or will soon be on
maternity leave.

STAFF TRAVEL AND LEAVE
John

August 25-26

Daryl

None

Dan

August 6-7
August 11-12
August 27,29

Gwen

July 28-August 8

Washington
Greenville Cases

Duluth
Peterson settlement conf.
Tulsa
Peterson deposition
Annual Leave
DHO Training

Janet

None

Gary

August 28, 29

LeeAnn
None
Claims database WAN to Mary Rose Hagan on July 31, 1997.

Annual Leave

u.s. DEPARTMENT OF JUSTICE
Federal Bureau of Prisons
orch Central Region
Office of Regional Counsel
Kan sas City, KS 66101
September 12, 1997
1EMORANDUM FOR WALLACE H. CHENEY,
GENERAL COUNSEL & REVIEW

ASSISTANT DIRECTOR

JOHN R . SHAW, Regional Counsel

!ROM:

~MONTHLY

lUBJECT:

REPORT (Au gust, 1997)

LITIGATION, CLAIMS , AND ADMINISTRATIVE REMEDY STATISTICS
LI TIGATION:
II

I

i

I

I

~~

I~

I~

I~

I~

,

i

I

I

1=
I~
I~
ISEP
~----~I----~I------I~----~
I -----
~----I~----~I----~I- - - - 25
1 38
122
123
139
128
127
I
14 2
I

Total new cases f o r calendar year

STRATIVE CLAIMS:

pAN

I

I

I

I

I

I

I

I

IFEB

I~

IAPR

1=

I~

IAUG

ISEP

~
~ 70

I
I 98

I
I 95

166

IMAY
I

II

I

195

1151

I

1*

169

I
I

I

I

Total for Calendar YeaI644
669
Pending
ADMINISTRATI VE REMEDIES
II

I

I

I

I

I~

I

I

IAPR

I

I

IMAY
I

1=

I~

IAUG

ISEP

I

I
I

II JAN

IFEB

I
1176

1180

1210

1196

1226

I

I

I

I

n

I

I

I

Total f or Cal endar Yea:!:1 , 45 5

I

I

1140

1164

I

1163

I

I

I

#

FREEDOM OF INFORMATION ACT/PRIVACY ACT REQUESTS

r

~e

have now revised our FOIA/PA system to start tracking monthly statistics in addition
loading into the national data base system. We will have a full month of statistics fo
ember ready for the October report. For this month our figures show we have cur
with 11 late.
ADVERSE DECISIONS
Ni11iams v. Hedrick, S.D. Illinois, Case No. 96-862-JPG, USP Marion
2241 petition alleging BOP wrongfully denied him 3621(e) credit for his conviction of f
possession of a firearm (922(g).
The Magistrate recommended requiring the BOP to asce
the petitioner's action "possessed an element of the use, attempted use or threatened u
The recommendation calls into question the per se denial of 3621(e) credit to any perso
convicted of possession of a weapon by a felon.
SETTLEMENTS OR JUDGMENTS
David Sterling v. United States,
Marion

s.o.

Illinois Case No. 93-148-WAS, USP Lewisberg/USP

Following a remand from the Seve~th Circuit which reversed a dismissal of the case, the
negotiated a settlement of $270.00. Plaintiff alleges BOP staff lost or misplaced per
property during a transfer.
Gallegos v. United States,

o.

Colorado Case No.

alleged staff lost or misplaced property. Records on some property were inadequ
for $500.00 on recommendation of u.s. Attorney's office.
cornwell v. USA,

o.

Colorado Case No. 96-0-2293, FCI Florence

Inmate alleged staff lost or misplaced art materials. There were some problems with pr
matter was settled for $250.00 on recommendation of u.s. Attorney's office.

DECISIONS OF INTEREST
None other than those reported above.

PENDING CASES OF INTEREST
"
Rahman
v. Keohane and Kane, W.D. MO. Case No. 97-3270-CV-S-RGC, MCFP Springfield
alleges various conditions of confinemtn violate his constituional rights and RF

ff is represented by former U.S. Attonrey General Ramsey Clark. The DOJ has app
counsel for the defendants.
An extesnion has been gratned and a responsive pIe
due on or about September 24, 19 97.
Buford ex reI. Leger v. USA, D. Kansas Case No . 97-2263-JWL, USP Leavenworth
Relatives of deceased inmate have brought on FTCA action alleging BOP negligence led to

of decedent.
Inmate Leger was murdered by inmate Storey in August, 1995.
pleaded guilty to murder.

Storey recen

RELIGIOUS FREEDOM RESTORATION ACT CASES
Jolly v. Booker and Pederson, D . Colorado Case No. 97-N-0793

Fer

Florence

Odinist seek injunctive relief compelling the BOP t o provide an exclusive outside worsh
Plaintiff alleges sweat lodge area is insufficient.

ENSIGN AMENDMENT LITIGATION
No new cases filed.

CRIMINAL MATTERS
United States v. Terry Nichols, D.Colorado,

Fer

Englewood

team has asked Judge Mast ch for an order allowing them to bring video carner

to film the loving relationship between Nichols and his family.
Institut
have worked this out with the defense team. Both Nichols and NcVeigh have filed motion
seeking to prevent the BOP from copying their social mail and asking they be permitted
social mail out sealed.
State of Illinois v. Kenneth B. Jones, Illinois State Circuit Court, FeI Greenville

Inmate pleaded guilty to state narcotics charge.

The U.S. Attorney had declined prosec

Inmate received two year consecutive sentence .

United States v. Ralph E. Brandon, Sixth Circuit Case No. 97-3812, FMC Rochester
Brandon is a 18 USC 4241(d) commitment .

Staff determined that psychotropic medication

the satient's best medical interest and necessary to restore him to competency. Defens
sought an evidentiary hearing for the purpose of obtaining a judicial determination of
m~dication.
The district court declined and the defendant appealed. The court of appe
reviewing t~o issues: (1) whether a pre-trial detainee has a right to a judicial procee
the involuntary administration of psychotropic medication deemed necessary to restore t
enCYi and (2) appellate jurisdiction.
ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST
None this month.
UPCOMING HEARINGS OR TRIALS
Pederson v. Reno, Case No. 5-95-30, FPC Duluth/UNlCOR, D. Minn.
Trial is set for Tuesday, September 16th. As we have reported previously, this case in
current DBO who alleges the BOP discriminated and retaliated against her when she was a
UNlOR Factory Manager. Plaintiff asserts UNlCOR's refusal to classify her position at
Duluth as a GS-12 was based on her sex. The suit is based on the Equal Pay Act and Tit
Settlement was unsuccessful. The BOP is calling some 15 witnesses, many of whom are no
other institutions.
PERSONNEL ISSUES
Angie Buege (FCI Sandstone) and Janice Bonneville (FCl Pekin) delivered baby girls.
Vincent Shaw, Law Clerk/Honor Program Attorney joins our staff effective September 2, 1
The North Central Region welcomes Vincent Shaw as our new Law Clerk/Honor's Attorney.
started on August 31, 1997.

STAFF TRAVEL AND LEAVE
John

Sept. 8
Sept. 17 - 19

MN, Honors Recruiting
Annual Leave

Daryl

Sept. 5 -11

Annual Leave

Dan

Sept. 15 - 19

Pederson Trial

Sept . 5 - 11
J ..anet

None

Gary

Sept. 18,19, 2 '

Annual Leave

Annual Leave

None

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

U.S. DEPARTMENT OF JUSTICE
Federal Bureau of Prisons
North Central Region
Office of Regional Counsel
Kansas City, KS 66101
October 10, 1997
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

MONTHLY REPORT (September, 1997)

. LITIGATION. CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

inst

num

hc

ftc

biv

oth

ans

pen

cld

hit

set

awd

62

30

4

11

170

19

549

46

10

0

0

OCT

NOV

NUM • Number of total lawsuits filed in the month (1)
He • Number of habeas corpus actions filed in the reporting period
FTC· Number of FTCA actions filed
BIV • Number of Bivens actions filed
OTH • Number of other actions filed, e.g., mental health, mandamus
ANS • Number of litigation reports completed
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)

Total new cases for calendar year 244

ADMINISTRATIVE CLAIMS:
JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

70

98

95

66

95

*

151

69

62

Total for Calendar Year
Pending

706
560

DEC

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

176

180

210

196

226

140

164

163

154

Total for Calendar Year

OCT

NOV

DEC

1,609

FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS
FOIA

PRIVACY ACT

ACTUAL ON-HAND

0

50

ACTUAL RECEIVED

0

78

ACTUAL PROCESSED

0

45

ACTUAL BACKLOG

0

16

ADVERSE DECISIONS

Clay v. Knowles D. Colorado Case No. 97-Z-0590 (USP FLP)
Judge Weinsheink ordered the government to grant credit toward an inmate's consecutive federal
sentence time spent in a federal facility, which was already credited toward his state tenn.
Inmate escaped from Colorado DOC and arrested later by FBI on federal drug charges. He was
~eld at FCI Englewood pending federal trial. His federal sentence was ordered to run
CONSECUTIVEL Y to any outstanding sentence. On date of federal sentencing, Colorado DOC
restarted the state tenn. USMS requested designation and BOP designated to Englewood. where
he remained until surrendered to the state, upon discovery of the designation error. The inmate
received credit toward his state tenn for the period in custody from the date of federal sentence
on. Upon completion of the state obligation, the inmate was returned to federal custody. He
received jail credit for the time spent in custody prior to federal sentencing, and his sentence \vas
commenced on the date received into BOP custody from the state. The Court's order directs the
BOP to begin the inmate's sentence on the date of federal sentencing, to stop it on the date he \vas
returned to the state authorities, and to begin the sentence again on the date he was returned to
federal custody. The order precludes the BOP from giving effect to the sentencing court's order
for consecutive service of the federal term. The Institution and NCRO have recommended
appeal. The U.S. Attorney's Office has recommended against appeal only because of the
perceived unfavorable judicial climate in the Tenth Circuit concerning sentence computation and
jail credit cases. See Tighe, below.

2

Tighe v. Booker, 10th Cir. Case No. 97-1046, (D.Ct. # 95-D-0638) (FCI FLF)
The Tenth Circuit affinned a district court decision awarding credit for time spent in federal
custody on writ. The inmate was in state custody when he was writted into federal custody for
federal prosecution .. Tighe's state sentence continued to run during entire period (31 months) in
federal custody on writ. The federal sentence was ordered to run concurrently with state tenn
and was started on date of sentencing. Tighe was returned to Louisiana, completed his state tenn
and was taken into federal custody. He sought credit toward federal tenn for 31 months on writ,
which was already credited toward state tenn. The district court ordered BOP to give that credit,
citing Brown decision from the Tenth Circuit, finding that the length of time on federal writ
exceeded the 19 months in Brown, thus, the custody "transmuted" to federal custody and the
inmate should get the credit toward the federal sentence.
On appeal, the Tenth Circuit upheld the District Court, holding that "in light of the length of'
time in federal custody on writ, the inmate was "in custody in connection with" the federal
charges, and thus was entitled to credit, relying on the previous decision in Brown. The fact that
the inmate already received credit for that time toward his state sentence was "of no moment to
the Tenth Circuit.
ll

SETTLEMENTS OR JUDGMENTS

Suarez v. Scott, et ai, D. Kansas Case No. 95-3407-KHV, USP Leavenworth
Inmate alleges he was denied food, water, and opportunity to use a lavatory when he placed in
four point restraints. The district court denied a motion to dismiss and/or for summary judgment
and appointed counsel to represent the inmate. The deposition of the inmate and several staff
. were taken and additional depositions were scheduled outside of the Leavenworth area. The
complaint was amended to add a claim under the FTCA. An agreement has been reached to
settle the same for $250.00 which is nuisance value.
DECISIONS OF INTEREST
None to report.

PENDING CASES OF INTEREST
Rahman v. Keohane and Kane, W.O. MO. Case No. 97-3270-CV -S-RGC, MCFP Springficld
Inmate alleges various conditions of confinement violate his constitutional rights and RFRA.
Plaintiff is represented by fonner U.S. Attorney General Ramsey Clark. The DOJ has appro\'cd
outside counsel for the defendants. Outside counsel, David Baker, filed a responsi\'e pleading
on on or about September 24. 1997 on behalf of Warden Keohane. Outside Counsel noted that
fonner Regional Director Patrick Kane had not been served and suggested, pursuant to
F.R.Civ.P. 25 (a)(l) that Mr. Kane was deceased ..
3

Buford ex rei. Leger v. USA, D. Kansas Case No. 97-2263-JWL, USP Leavenworth
Relatives of deceased inmate have brought on FTCA action alleging BOP negligence led to death
of decedent. Inmate Leger was murdered by inmate Storey in August, 1995. Storey recently
pleaded guilty to murder.
RELIGIOUS FREEDOM RESTORATION ACT CASES
Saleem v. Helman, 7th Cir. Case No. 96-2502, (FCI PEK)
Offender challenged denial of conjugal visits as a violation of First Amendment and RFRA.
After district court dismissed claim, inmate appealed. In an unreporte4 opinion, the court held
RFRA had been declared unconstitutional, citing City of Beorne v. Flores, 117 S.Ct. 2157 (1997)
and no longer was enforceable. Court followed long line of cases holding an inmate has no
constitutional right to contact visitation or conjugal visits. See 1997 WL 527769.
ENSIGN AMENDMENT LITIGATION
No new cases filed.
CRIMINAL MATTERS
United States v. Rickets, S.D. Ill, FCI Greenville
Inmate Rickets was sentenced to a consecutive 12 year sentence for mutiny and rioting. The case
arose out of the October, 1995 disturbance at FCI Greenville.
United States v. Johnson, N.D. Ill, MCC Chicago
MCC is housing several defendants who are facing the death penalty in the Northcrn District of
Illinois. Defense counsel requested that their expert be permitted to interview sevcral BOP staff
who have interacted with the defendant in order to develop an opinion whether thc defendant
could safely function in a correctional facility like ADX Florence without posing a risk to staff or
other inmates. MCC Attorney Ken Hyle has been in contact with our office and Doug Curlcss in
the OGC concerning this recurring and sensitive issue.

United

State~

v. Ralph E. Brandon, Sixth Circuit Case No. 97-3812, FMC Rochester

Brandon is a 18 USC 4241 (d) commitment. Staff determined that psychotropic nleJicalion was
in the patient's best medical interest and necessary to restore him to competency. I >efense:
counsel sought an evidentiary hearing for the purpose of obtaining ajudicial dctenllination of the:
need for medication. The district court declined and the defendant appealed. The CllUn of
appeals is reviewing two issues: (1) whether a pre-trial detainee has a right to a judicial
proceeding prior to the involuntary administration of psychotropic medication deenle:J ne:cessa~
to restore to competency; and (2) appellate jurisdiction.
4

ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST
None this month.

TRIALS OR HEARINGS
Pederson v. Reno, Case No. 5-95-30, FPC DuluthlUNICOR, D. Minn.
This Title VIIlEqual Pay Act trial was held September 16-18th in St. Paul, Minnesota. The
plaintiff testified that she was not paid as much as similarly-situated male Systems Factory
Managers in the BOP. The plaintiff admitted documents showing that the systems operation
was under the Unicor Metals Division and the BOP's Grade Guidelines for Managers graded the
Duluth Metals Factory Manager as a GS-12. Next the plaintiff's expert deposition was admitted.
The plaintiff's expert stated that the plaintiff s position was incorrectly evaluated with the Woods
Factory Manager criteria and instead should have been evaluated with the Metals Factory
Manager criteria. Finally, she provided evidence that the Systems Factory Manager position at
FCI Schuylkill was paid a GS-12.
The defense countered with testimony that the systems operation has moved to several divisions
in Unicor, that the panels-systems operation did not involve the fabrication of metal parts from
raw materials, that no specific criteria existed for evaluating Systems Factory Managers in the
BOP's Grade Guidelines for Managers, and when evaluated with the OPM's classification
standards; the plaintiff s position correctly graded as a GS-ll, not a GS-12. Severa:l defense
witnesses also testified that managing a Unicor operation at higher-security institution was more
dangerous, involved greater tool control, called for a greater supervision of inmates. and was
more responsibility than managing a Unicor operation at a Federal Prison Camp. After closing
arguments, Judge Alsop took the case under advisement.
Of the remaining nine trials and hearings held, six mental health hearings were held at the MCFP
Springfield, and one mental health hearing was held at FMC Rochester. USP Florence was the
site ofa criminal arraignment in a inmate on inmate homicide case (U.S. v. Morris). USP
Marion staff participated in a pre-trial hearing in the case Huskey v. USA.

UPCOMING HEARINGS OR TRIALS
Love v. Tippy, 8th Cir. Case No. 96-4224-MN, FCI Waseca, DAP credit
Oral argument scheduled for Monday, October 20, 1997 in St. Paul Minnesota. Inmate Love"s
underlying conviction is carrying a firearm during the commission of a drug offense or a erime of
violence, 18 USC 924( c)( 1). This is the exact same offense that the plaintiff in Sesler \': Pitzer
was convicted of and denied DAP credit under.

5

.'

u.s. DEPARTMENT OF JUSTICE
Federal Bureau of Prisons
North Central Region
Office of Regional Counsel

Kansas City, KS 66101
October 10, 1997

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

JOHN R. SHAW, Regional Counsel

SUBJECT:

MONTHL Y REPORT (September, 1997)

LITIGATION. CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

-'"

NUM - Number of total lawsuits filed in the month (1)
HC • Number of habeas corpus actions filed In the reporting period
FTC - Number of FTCA actJons filed
BIV • Number of Bivens actions filed
OTH • Number of other actions filed, e.g .• mental health. mandamus
ANS • Number of litigation reports completed
. 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)

Total new cases for calendar year 244
ADMINISTRATIVE CLAIMS:
JAN
70

_
..

FEB
98

MAR

APR

95

66

Total for Calendar Year
Pending

MAY JUN
95
•
706
560

JUL
151

AUG
69

SEP
62

OCT

NOV

I DEC'
I
I

,._.

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY JUN

JUL

AUG

SEP

176

180

210

196

226

140

164

163

154

Total for Calendar Year

OCT

NOV

DEC

1,609

FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS

ACTUAL ON-HAND
ACTUAL RECEIVED
ACTUAL PROCESSED
ACTUAL BACKLOG

0
0

PRIVACY ACT
50
78
45

0

16

FOIA
0

ADVERSE DECISIONS

-

--'

Clay v. Knowles D. Colorado Case No. 97-Z-0S90 (USP FLP)
Judge Weinsheink ordered the government to grant credit toward an inmate's consecutive federal
sentence time spent in a federal facility, which ,was already credited toward his stale lenn.
Inmate escaped from Colorado DOC and arrested later by FBI on federal drug charges. He was
held at FeI Englewood pending federal trial. His federal sentence was ordered to run
CONSECUTIVEL Y to any outstanding sentence. On date of federal sentencing, Colorado DOC
restarted the state tenn. USMS requested designation and BOP designated to Englewood. where
he remained until surrendered to the state,.upon discovery of the designation error. The inmate
received credit toward his state tenn for the period in custody from the date of federal sentence
on. Upon completion of the state obligation, the inmate was returned to federal custody. He
received jail credit for the time spent in custody prior to federal sentencing, and his sentence \\'as
commenced on the date received into BOP custody from the state. The Court's order directs the
BOP to begin the inmate's sentence on the date of federal sentencing, to stop it on the date he
was returned to the state authorities, and to begin the sentence again on the date he "'as returned
to federal custody. The order precludes the BOP from giving effect to the sentencing court's
order for consecutive service of the federal term. The Institution and NeRO have recommended
appeal. The U.S. Attorney's Office has recommended against appeal only because of the
perceived unfavorable judicial climate in the Tenth Circuit concerning sentence computation and
jail credit cases. See Tighe, below.

u.s. DEPARTMENT OF JUSTICE
FederaI Bureau of Prisons
~orth:Cenfr811tegion':··

Office of Regional Counsel
Kansas City, KS 66101
October 10, 1997
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW, Regional Counsel

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

NUM - Number of total lawsuits flied in the month (1)
HC - Number of habeas corpus actions flied 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
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)

Total new cases for calendar year 244

ADMINISTRATIVE CLAIMS:
JAN
70

FEB

MAR

APR

MAY

98

95

66

95

Total for Calendar Year
Pending

JUN

706
560

•

JUL

AUG

SEP

151

69

62

OCT

NOV

DEC

,

ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

176

180

210

196

226

140

164

163

154

Total for Calendar Year

OCT

NOV

DEC

1,609

FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS

ACTUAL ON-HAND
ACTUAL RECEIVED
ACTUAL PROCESSED
ACTUAL BACKLOG

FOIA

PRIVACY ACT

0
0

50
78
45
16

0
0

ADVERSE DECISIONS
Clay v. Knowles D. Colorado Case No. 97-Z-0590 (USP FLP)
Judge Weinsheink ordered the government to grant credit toward an inmate's consecutive federal
sentence time spent in a federal facility, which was already credited toward his state term.
Inmate escaped from Colorado DOC and arrested later by FBI on federal drug charges. He was
held at FCI Englewood pending federal trial. His federal sentence was ordered to run
CONSECUTIVELY to any outstanding sentence. On date of federal sentencing, Colorado DOC
restarted the state term. USMS requested designation and BOP designated to Englewood. where
he remained until surrendered to the state, upon discovery of the designation error. The inmate
received credit toward his state term for the period in custody from the date of federal sentence
on. Upon completion of the state obligation, the inmate was returned to federal custody. He
received jail credit for the time spent in custody prior to federal sentencing, and his sentence was
commen~ed on the date received into BOP custody from the state. The Court's order directs the
BOP to begin the inmate's sentence on the date of federal sentencing, to stop it on the date he
was returned to the state authorities, and to begin the sentence again on the date he was returned
to federal custody. The order precludes the BOP from giving effect to the.sentencing court's
order for consecutive service of the federal term. The Institution and NCRO have recommended
appeal. The U.S. Attorney's Office has recommended against appeal only because of the
perceived unfavorable judicial climate in the Tenth Circuit concerning sentence computation and
jail credit cases. See Tighe, below.

,

Tiehe v. Booker, 10th Cir. Case No. 97-1046, (D.Ct. # 95-D-0638) (FCI FLF)
The Tenth Circuit affinned a district court decision awarding credit for time spent in federal
custody on writ. The inmate was in state custody when he was writted into federal custody for
federal prosecution.. Tighe's state sentence continued to run during entire period (31 months) in
federal custody on writ. The federal sentence was ordered to run concurrently with state term
and was started on date of sentencing. Tighe was returned to Louisiana, completed his state term
and was taken into federal custody. He sought credit toward federal term for 31 months on writ,
which was already credited toward state term. The district court ordered BOP to give that credit,
citing Brown decision from the Tenth Circuit, finding that the length of time on federal writ
exceeded the 19 months in Brown, thus, the custody "transmuted" to federal custody and the
inmate should get the credit toward the federal sentence.
On appeal, the Tenth Circuit upheld the District Court, holding that "in light of the length oft
time in federal custody on writ, the inmate was "in custody in connection with" the federal
charges, and thus was entitled to credit, relying on the previous decision in Brown. The fact that
the inmate already received credit for that time toward his state sentence was "of no moment" to
the Tenth Circuit.

SETTLEMENTS OR JUDGMENTS

Suarez v. Scott, et aI, D. Kansas Case No. 95-3407-KHV, USP Leavenworth
Inmate alleges he was denied food, water, and opportunity to use a lavatory when he placed in
four point restraints. The district court denied a motion to dismiss and/or for summary judgment
and appointed counsel to represent the inmate. The deposition of the inmate and several staff
were taken and additional depositions were scheduled outside of the Leavenworth area. The
complaint was amended to add a claim under the FTCA. An agreement has been reached to
settle the same for $250.00 which is nuisance value.

DECISIONS OF INTEREST
None to report.

PENDING CASES OF INTEREST
Rahman v. Keohane and Kane, W.D. MO. Case No. 97-3270-CV-S-RGC, MCFP Springfield
Inmate alleges various conditions of confinement violate his constitutional rights and RFRA.
Pl~ntiff is represented by fonner U.S. Attorney General Ramsey Clark. The DO] has approved

outside counsel for the defendants. Outside counsel, David Baker, filed a responsive pleading
on on or about September 24, 1997 on behalf of Warden Keohane. Outside Counsel noted that
fonner Regional Director Patrick Kane had not been served and suggested, pursuant to

F.R.Civ.P. 25 (a)(I) that Mr. Kane was deceased ..
Buford ex reI. Leger v. USA, D. Kansas Case No. 97-2263-JWL, USP Leavenworth
Relatives of deceased inmate have brought on FTCA action alleging BOP negligence led to
death of decedent. Inmate Leger was murdered by inmate Storey in August, 1995. Storey
recently pleaded guilty to murder.

RELIGIOUS FREEDOM RESTORATION ACT CASES

Saleem v. Helman, 7th Cir. Case No. 96-2502, (FCI PEK)
Offender challenged denial of conjugal visits as a violation of First Amendment and RFRA.
After district court dismissed claim, inmate appealed. In an unreported opinion, the court held
RFRA had been declared unconstitutional, citing City of Beome v. Flores, 117 S.Ct. 2157 (1997)
and no longer was enforceable. Court followed long line of cases holding an inmate has no
constitutional right to contact visitation or conjugal visits. See 1997 WL 527769.

ENSIGN AMENDMENT LITIGATION
No new cases filed.

CRIMINAL MATTERS

United States v. Rickets, S.D. Ill, FCI Greenville
Inmate Rickets was sentenced to a consecutive 12 year sentence for mutiny and rioting. The case
arose out of the October, 1995 disturbance at FCI Greenville.

United States v. Johnson, N.D. Ill, MCC Chicago
MCC is housing several defendants who are facing the death penalty in the Northern District of
Illinois. Defense counsel requested that their expert be permitted to interview several BOP staff
who have interacted with the defendant in order to develop an opinion whether the defendant
could safely function in a correctional facility like ADX Florence without posing a risk to staff or
other inmates. MCC Attorney Ken Hyle has been in contact with our office and Doug Curless in
the OGC concerning this recurring and sensitive issue.

United States v. Ralph E. Brandon, Sixth Circuit Case No. 97-3812, FMC Rochester

•

Brandon is a 18 USC 4241 (d) commitment. Staff determined that psychotropic medication was
in the patient's best medical interest and 'necessary to restore him to competency. Defense
counsel sought an evidentiary hearing for the purpose of obtaining a judicial determination of the
need for medication. The district court declined and the defendant appealed. The court of
appeals is reviewing two issues: (1) whether a pre-trial detainee has a right to a judicial

proceeding prior to the involuntary administration of psychotropic medication deemed necessary
to restore to competency; and (2) appellate jurisdiction.

ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST
None this month.

TRIALS OR HEARINGS
Pederson v. Reno, Case No. 5-95-30, FPC DuluthlUNICOR, D. Minn.
This Title VII/Equal Pay Act trial was held September 16-18th in St. Paul, Minnesota. The
plaintiff testified that she was not paid as much as similarly-situated male Systems Factory
Managers in the BOP. The plaintiff admitted documents showing that the systems operation
was under the Unicor Metals Division and the BOP's Orade Ouidelines for Managers graded the
Duluth Metals Factory Manager as a OS-12. Next the plaintiff's expert deposition was
admitted. The plaintiff's expert stated that the plaintiff's position was incorrectly evaluated with
the Woods Factory Manager criteria and instead should have been evaluated with the Metals
Factory Manager criteria. Finally, she provided evidence that the Systems Factory Manager
position at FCI Schuylkill was paid a OS-12.
The defense countered with testimony that the systems operation has moved to several divisions
in Unicor, that the panels-systems operation did not involve the fabrication of metal parts from
raw materials, that no specific criteria existed for evaluating Systems Factory Managers in the
BOP's Orade Guidelines for Managers, and when evaluated with the OPM's classification
standards; the plaintiff's position correctly graded as a OS-II, not a GS-12. Several defense
witnesses also testified that managing a Unicor operation at higher-security institution was more
dangerous, involved greater tool control, called for a greater supervision of inmates, and was
more responsibility than managing a Unicor operation at a Federal Prison Camp. After closing
arguments, Judge Alsop took the case under advisement.
Of the remaining nine trials and hearings held, six mental health hearings were held at the MCFP
Springfield, and one inental health hearing was held at FMC Rochester. USP Florence was the
site ofa criminal arraignment in a inmate on inmate homicide case (U.S. v. Monis). USP
Marion staifparticipated in a pre-trial hearing in the case Huskey v. USA.

UPCOMING HEARINGS OR TRIALS
Love v. Tipny, 8th Cir. Case No. 96-4224-MN, FC) Waseca, DAP credit
Oral argument scheduled for Monday, October 20, 1997 in St. Paul Minnesota. Inmate Love's
underlying conviction is carrying a firearm during the commission of a drug offense or a crime of
violence, 18 USC 924(c)( 1). This is the exact same offense that the plaintiff in Sesler v. Pitzer

,

was convicted of and denied DAP credit under.
PERSONNEL ISSUES

None

STAFF TRAVEL AND LEAVE

John

October 7-8
October 20 -24

Daryl

October 3
October 7-8
October 7-8

Dan
Vincent

Sept. 29 - Oct. 10
October.20 - 24

Gwen

October 17

Janet

October 14 - 17

Gary

October 9,10

LeeAnn

None

Master Agreement Training
OGClNew Attorney Training
CLE Medical Malpractice
Master Agreement Training
Master Agreement Training
Institution Familiarization
New Attorney Training
Annual Leave
Annual Leave
Annual Leave

Claims database WAN to Mary Rose Hagan on September 30, 1997.