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

Tower II. 8th Floor
400 State Street
Kansas City. KS 66101-2421

January 21, 1999

MEMORANDUM FOR CHRISTOPHER ERLEWINE,
ASSISTANT DIRECTORJGENERAL COUNSEL
GENERAL COUNSEL AND REVIEW DIVISION
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

Quarterly Report (1st QTR FY 1999)
(October 1, 1998 - December 31, 1998)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:
inst

nurn

hc

ftc

biv

oth

ans

pen

cld

hIt

set

awd

NCR

127

65

17

32

19

48

483

69

16

5

000

NUM • Number of total.lawsuits filed in the month
HC· Number of habeas corpus actions filed hi the reporting period
FTC • Number of ~CA 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
SET - Number of settlements
AWD· Number of Awards

North Central Region
Regional Counsel Quarterly Report
1st Quarter, FY 1999
Page 2

ADMINISTRATIVE CLAIMS:
1st QTR (Oct - Dec)

2nd QTR (Jan-Mar)

3rd QTR (Apr - Jun)

4th QTR (J~l - Sep)

3rd QTR (Apr - Jun)

4th QTR (Jul - Sep)

228

Pending 269

ADMINISTRATIVE REMEDIES
1st QTR (Oct - Dec)

2nd QTR (Jan-Mar)

668

FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS
FOIlPA
Received
1st QTR

202

FOIlPA
Processed
207

2ndQTR
3rd QTR
4thQTR

ADVERSE DECISIONS
Capote v. Page True, Case No. 97-3156-RDR, USP Leavenworth
On September 18, 1998. the court granted this petition for writ of habeas corpus and \'acated the
petitioner's conviction and sentences on counts 3 and 4 under 18 U.S.C. section 924 (c)( I) .

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1st Quarter, FY 1999
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Hicks v. Brooks, Case No 97-D-785, FCI Englewood
~udge Daniel invalidated the BOP's use of sentence enhancements to deny an i~ate early release
eligibility under § 3621 (e). In coming to his conclusion, the judge relied on the Fristoe opinion and
found that the BOP was wrong for considering factors other than the offense an inmate was
convicted of when making early release determinations. The case involved application of the BOP's
Categorization of Offenses program statement. The Court is evaluating the United States' Motion
for reconsideration.
Bellis v. Herrera & BOP, CIV98-4099, FPC Yankton
Inmate filed habeas petition 'alleging improper classification by BOP as ineligible for early release
under 18 U.S.C. § 3621(e)(2)(B), and requested an order from the court directing the BOP to
reconsider his classification in accordance with the 8th Circuit decision in Martin. On October 23,
1998, ~e Court granted the petition and ordered the BOP to reconsider Bellis's eligibility for early
release in accordance with their opinion. A motion to Alter or Amend Judgment was filed by the
government. The case is being appealed to the 8th Circuit.
Shields v. Herrera, CIV98-4123, FPC Yankton
Identical issue to Bellis. Court ordered that the BOP promptly reconsider the eligibility of petitioner
in accordance with their opinion in Bellis.
Pierson v. Herrera, CIV98-4113, FPC Yankton
.Identical issue to Bellis. Court ordered that the BOP promptly reconsider the eligibility of petitioner
in accordance with their opinion in Bellis.
u.S. v. Brandon, 1998 WL 735839 (6 th Cir.), FMC Rochester
An adverse decision in this case of a pretrial detainee committed to the custody of the Attorney
General for restoration of competence to stand trial pursuant to 18 U.S.C. § 4241(d). The issue
before the Sixth Circuit was whether a pretrial detainee is entitled to a judicial hearing prior to the
involuntary administration of antipsychotic medication to restore competence. The Court held that
due process requires that a non-dangerous pre-trial detainee be provided a judicial e"identiary
hearing prior to being involuntarily medicated for the purpose of rendering himlher competent to
stand trial. The Court then held that the government's request to forcibly medicate a non-dangerous
pre-trail detainee must survive the strict scrutiny standard, and that the government must prove its
case for involuntary medication by clear and convincing evidence.

SETTLEMENTS OR JUDGMENTS
Barnes v. United States, 96-3280-CV-S-4, MCFP Springfield
Plaintiff filed an FTCA against government officials alleging negligence when officials allowed him

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Regional Counsel Quarterly Report
1st Quarter, FY 1999
Page 4

to retain a razor blade and his eye glasses thus facilitating his suicide attempt. He also alleged
medical negligence by the physician in failing to properly diagnose and treat his heart attack. This
case was settled for $20,000 on December 30, 1998. It will be included in the monthly report for
January 1999.

Boyd v. United States, 98-S-1026, ADX Florence
Plaintiff was offered $25 to settle this FTCA case on October 15, 1998. The inmate agreed to settle
for this amount, but was concerned about how much of his settlement would go toward his filing fee
of $150. The inmate was informed that twenty percent of all deposits would be applied to the filing
fee because he remained liable for this accrued cost. The judge closed the case on October 20, 1998.
Cuoco v. United States. 97-CIV-1268, FCC Florence
On October 1, 1998, an Offer of Judgment for $10,000 in favor of the Plaintiff in this case was
received from the AUSA for the Southern District of New York. The inmate agreed to the offer on
Monday, October 5. The AUSA arranged to have judgment entered against the United States. The
judge closed the case in the matter. ADX staff continue to work with the NERO and the U.S.
Attorney's Office regarding the receipt of the settlement amount due to the fact that the inmate owes
the ADX $946.02 in DHO restitution, copies, postage, and a court filing fee.
Cuoco v. United States. 93-CIV-2806, FCC Florence
On October 13, 1998, an Offer of Judgment for $3,500 in favor of the Plaintiff in this case was
received the AUSA for the Southern District of New York. Again, the inmate accepted the offer of
judgment and the judge closed the case in the matter. As stated in the above referenced casco ADX
staff continue to work with the NERO and the U.S. Attorney's Office regarding the receipt of the
settlement amount due to the fact that the inmate owes the ADX $946.02 in DHO restitution. copies.
postage, and a court filing fee.
Hernandez v. BOP. et al., 98-S-731, FCI Englewood
Plaintiff alleged defendants improperly refused to allow her to visit her husband while he was
confined at FC! Englewood. A settlement offer was accepted by the defendants which allowed
plaintiffs husband to serve remaining sentence (7 months) in a halfway house.

DECISIONS OF INTEREST
Michael R. Hyde v. Kathy Hawk, Case No. 98-3107-GTV, USP Leavenworth
In this case, plaintiff sought the return of funds withheld under the Inmate Financial Re~p'm~lhilit~
Program (IFRP). He challenged the authority of the BOP to set up a restitution payment nlc. .\:hanism.
The plaintiff admitted that he signed up for the IFR~ program, but stated he did so (lnl~ to keep

North Central Region
Regional Counsel Quarterly Report
1st Quarter, FY 1999
PageS
privileges that would have been impacted ifhe failed to participate in IFRP. The court found any
relief on plaintiff's claim was defeated by the doctrine of invited error. See Brown v. Presbyterian
Health care Services. 101 F.3d 1324, 1332 (10th Cir. 1996) (subsequent review precluded where
litigant complains of errors he has himself induced or invited).

Lozano v. Reno, 95-WM-2261, FCI Englewood
After a three-day trial, U.S. District Court Judge Walker Miller found for the United States and ruled
that a fonner employee was not discriminated or retaliated against when he was removed from his
position for falsification of preemployment documents. The case was very close because while the
judge ultimately found for the United States, he found that there were several problems with the way
the BOP conducted the preemployment screening process and did not think the plaintiff was treated
fairly. The judge gave considerable weight to the testimony of fonner FCI Englewo'od Warden
Anthony Belaski and his employees who felt that Belaski was fair and supportive of minority
employees. Since this case was filed before the enactment of the 1991 Civil Rights Act. the plaintiff
was limited to seeking eight years of backpay and attorneys' fees. Based on the amount of time
opposing counsel has invested in the case, it is expected they will appeal the decision to the Tenth
Circuit. The case was handled by legal staff at the NCRO.

PENDING CASES OF INTEREST
Teich v. U.S.A. et aI., Case No. CV-S-98-01213-HDM, MCFP Springfield
Plaintiff's filed a BivenslFTCA action wherein they allege wrongful death of a quadriplcgic inmate
who died at the medical center. An answer was filed by the AUSA in the District of Nc\'ada. This
will be a difficult case and settlement is being explored.
Parmelee v. True. et al. Case No. 93-C-7362, MCC Chicago
Fonner inmate alleges that U.S. Marshals and BOP employees used excessive forcc whcn the inmatc
refused to appear in court. Case problematic becal:1se a defendant was disciplined by ~ICC for using
excessive force during the incident.
Hall v. USA. et aI., Case No. 98-2405-RCL, USP Leavenworth
In this Bivens-styled action plaintiff raises numerous allegatio~s against various defcndants
beginning from the time of his arrest through various incidents at three separate institutiuns. First.
plaintiff alleges he was assaulted by three correctional officers at USP Leavenworth \\ hile hc was
confined in D-Cellhouse. He also alleges he received inadequate medical treatmcnt at l'SP

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1st Quarter, FY 1999
Page 6

Leavenworth as a result of the alleged assault. In addition to naming Director Hawk Sawyer and
Mr. Hershberger as defendants, plaintiff has named in excess of 30 defendants from USP
Leavenworth, approximately 20 defendants from USP Florence, and several defendants from FTC
Oklahoma and USP Atlanta.

Lewis v. United States, Case No~ 98-64-JP, USP Marion
Plaintiff alleges that staff were negligent in placing him in a housing unit with an inmate who posed
a threat, resulting in an serious assault. He seeks $50,000 in compensatory damages for pain suffered,
periodic headaches and physical defonnity at the injury site.
Yousef(Ramzi Ahmed) v. Reno, Hawk and Hurley, 98-CV-2008, ADX Florence
Plaintiff is one of the World Trade Center bombers who is confined at ADX Florence. He is under
28 CFR Section 501.3 restrictions. The plaintiff, through his counsel of record in the criminal case,
challenges as unconstitutional his various special restrictions, including the English only rules.
Patricia Good Voice Flute v. Pine Medical Center, et al., #98-1735, NCROIFPC DuluthlFCI
Sandstone
Dr. Homeister, from FPC Duluth is a defendant as well as the Pine Medical Center. S1. Mary's
Duluth Clinic Health System and the Sandstone Medical Group. Plaintiff contends that BOP doctors
and contract medical facility were responsible for the wrongful death of her inmate husband who
suffered from a fatal heart attack while at FCI Sandstone. NCRO Legal staff have primary
responsibility for this case.
Massey and Otten v. David Helman. et al., Case No. 97-1401, C.D. IL, FCI Pekin
Pursuant to Rule 23, Fed. R. Civ. P .• Plaintiffs brought a Motion for Class Certification. Plaintiff
Massey alleged that because it is institutional policy to deny necessary medical care to inmates, he
was denied the prescribed medical treatment for an existing hernia, a violation of his Eighth
Amendment right to be free from cruel and unusual punishment. In addition to his individual claim.
Plaintiff Massey sought class certification on behalf of other inmates who were denied medical
treatment. Plaintiff Otten was a former staff physician at FCI Pekin prior to his temlination during
March 1998. Plaintiff Otten alleged that he was terminated for insisting that his patients receive
necessary medical care as required by the Eighth Amendment and because he spoke freely \"ith the
inmates about the necessary medical care being denied to them. In addition to Plaintifr Otten's
individual claim, he brought action o~ behalf of his former FCI Pekin inmate patients. In an Order
dated July 7, 1998, the Court denied the Motion because Plaintiffs· failed to nleet the first of four prerequisites to certify the class; numerosity.
Boyce v. Hershberger, Case No. 983238-GTRV, D.Kan., NCRO
Convicted spy Christopher Boyce has filed suit in the District of Kansas alleging that his
constitutional rights were violated when he was transferred from a state facility in Minnesota to ADX

North Central Region
Regional Counsel Quarterly Report
1st Quarter, FY 1999
Page 7

Florence. Boyce is represented by counsel in this matter and claims that he was transferred solely
because of articles he wrote while in state custody. Boyce will settle the case if moved to FCI
Sheridan.

Rahman v. Keohane, et aI., W.D. MO. Civil No. 97-3279-CV-S-RGC
We continue to closely monitor and provide assistance to DO) attorneys handling this case involving
inmate Omar Rahman, a radical cleric for the Sunni Sect of the Islamic religion. Inmate Rahman
is serving a life sentence for crimes associated with the bombing of the World Trade Center in New
York City. This lawsuit alleges some 41 violations of plaintiffs constitutional rights, as well as
violations of the RFRA of 1993. Rahman is represented by fonner Attorney General Ramsey Clark.
The case remains in limbo as the court in the Western District of Missouri (where the case was filed
when Rahman was confined at MCFP Springfield) decides how to handle dispositive pleadings and
a suggestion to move the case to Minnesota. We have opposed the Magistrate's suggestion to Judge
Clark that the case should be moved.

Greenville Disturbance Cases
In the aftermath of the October, 1995 disturbance at FCI Greenville, some thirteen law suits have
been initiated alleging a panoply of civil rights violations. Because staff action was the subject of
a civil rights investigation and OIA inquiry, representation requests were scrupulously processed.
Due to misconduct of some employees during the disturbance aftermath. and conflicts between
employees, several staff were granted outside counsel and several others were denied representation.
The Union has been paying for representation by private counsel for some employees. The
representation issue has been a contentious subject for Greenville staff. Processing and supervising
these cases has been a major drain on regional office staff. Several of these cases are moving toward
a probable trial. We have settled one, and hope to settle several more.

RELIGIOUS FREEDOM RESTORATION ACT CASES
Kikumura v. Hurley, et al .. Case No. 98-8-1442, ADX Florence
Inmate challenges the denial of pastoral visits. As the inmate expressly raises a RFRA issue in his
complaint, NCRO was contacted in order to recommend outside representation on the case.
Representation materials were sent via Fed Ex to the Department of Justice. The AUSA has drafted
a motion for extension of time given that outside counsel is being considered in this case.

· North Central Region
Regional Counsel Quarterly Report
1st Quarter, FY 1999
Page 8

Garraway v. Kathleen Hawk, et al., Case No. 97-3023, USP Leavenworth
In this case which was transferred from the Central District of California, plaintiff asserts a claim
of cruel and unusual punishment and he argues the defendants actions violated his rights under the
First Amendment and Religious Freedom Restoration Action by preventing him from washing and
praying as required by his religious beliefs.

UPCOMING HEARINGS OR TRIALS
Tuite v. True, et aI., Case No. 93-CV-3248, MCC Chicago
Attorney alleges that conversations with his client were recorded by MCC Chicago in 1992. Court
set status hearing for April 13, 1999.
Martinez v. Counts, et aI., Case No. 90-3224-CV-S-4, MCFP Springfield
The trial for this constitutional tort case was set to commence on January 19, 1999. However, the
case has been postponed on motion by the plaintiff. This lawsuit is an old one that went up on
appeal, 977 F .2d 421 (8th Cir. 1992) and resulted in a reversal of the judge's order dismissing the
complaint. After the case was remanded, we again attempted to dismiss the case but our efforts were
unsuccessful. We continue to believe the three defendants remaining in the case will prevail.
U.S. v. Francis and Haney, USP Florence
.Inmates charged with attempted escape from USP and possession of contraband (escape
paraphernalia). The in camera hearing to rule on the security issue of request for plans and
blueprints has been moved to January of 1999.
USA v. Simmonds, ADX Florence
Arraigned on two counts of assault on staff at ADX. Matter initially charged as misdemeanors but
due to history of assaultive behavior, inmate indicted on felony counts. Trial postponed indefinitely
due to AUSA illness. Defendant filed motion to dismiss the indictment due to prosccutorial
vindictiveness. Claimed the matter was charged as a felony instead of remaining a misdcmeanor
because defendant filed civil litigation against BOP staff. Hearing was held Decembcr 10. 1998.
The Court declined to dismiss indictment and set the matter for trial in 1999.

CRIMINAL MATTERS

U.S. v. Riddle and Black. USP Florence
Plea negotiations ongoing regarding the charge of an inmate murder at USP. Discovcry and
protective order issues continue with respect to inmate Riddle. Inmate Black pleadcd guilty to

North Central Region
Regional Counsel Quarterly Report
1st Quarter, FY 1999
Page 9
aggravated assault. Sentencing is set for March of 1999. Riddle filed motion for relief from
protective order. Hearing held by Judge Sparr on December 16, 1998. At that time, Judge wanted
testimony from BOP on what documents had been provided for Riddle to review in accordance with
the court orders.' BOP testified that all documents had been provided on several occasions for
Riddle's review. The Judge held that the BOP had complied with the order and that no relief was
necessary.

u.s. v. Petty, 98-10027, FeI Pekin
At the sentencing for Possession of Marijuana, the inmate was given an opportunity to show
acceptance of responsibility for his action by informing the court of how he obtained the balloons .
. He told the court he found the balloons in the change return on the vending machine and then placed
them in his chip bag. The AUSA put the investigator on the stand and submitted the video as
evidence in the matter. The judge clearly saw that the balloons were placed in the chip bag by the
inmates visitor. The inmate was charged with Obstruction of Justice in addition to his possession
charges. He was sentenced to 21 months on what was initially an 8-14 month guideline.