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

Tower Il8th Floor
400 Stole Stre6t
KmuG.l City. KS 66101-2421

April 21, 1999

MEMORANDUM FOR CHRISTOPHER ERLEWINE,
ASSISTANT DIRECTORlG~I."I.I~~ COUNSEL

G

RE

DMSION

FROM:

SUBJECT:

erly Report (2nd QTR FY 1999)
ary I. 1999 - March 31, 1999)

LmGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS

LITIGATION:
INST

NUM

He

FTC

BIV

OTH

ANS

PEN

CLD

tvr

SET

AWO

1Qtr

NCR

127

65

17

32

19

48

483

SQ

16

5

0.00

2Qtr

NCR

181

111

15

37

18

62

503

75

12

3

0.00

SQtr
4Qtr

NUM • Nurr.- of toW ....... filed In the monIh
He. ,..... of ....... corpus 8CdonI tiled In the ntpOrIJna period
FTC • NIanber of FTCA 8CIIofts ....
&IV. NurnMr of BIwna IICtIona tiled
OTH • Nwnber of oa...:IIona tied, e.g.. nwauI huIIn. rnandm1us
ANa - Numbw of""", ..-peNta ~

PEN • NLWnbIr 01 cues pencflng
CLD· Number or a... doMCI
Ht1'. N1adJer of ....... or trills
SET· Numberot..alemlnCa
AWD - Number of Aw.rcIs

North CeotraI Region
Regional Counsel Quarterly Report
2nd Quarter, FY 1999
Page 2

ADMINISTRATIVE CLAIMS:
1st QTR. (Oct - Dec)

2nd QTR (Jan-Mar)

228

236

3rd QTR (Apr - Jun)

4th QTll (Jul - Sep)

i

Peodinl288
ADMINISTRATIVE REMEDIES
1st QTR(Oct -Dec)

2nd QTR (Jan-Mar)

668

624

3rd QTR (Apr - Jun)

4th QTR (Jul- Sep)

FREEDOM OF INFORMATION ACfIPRIVACY ACf REQUESTS
FOIIPA

FOIIPA

Received

Processed

lstQTR

202

207

~ndQTR

219

221

I

i

3rdQTR
4thQTR

ADVERSE DECISIONS

AupJeby-e1 y, USA. Cue No. 97-N-0671. ADX FlOl'eDU
Plaintiff alleged he slipped and feU because the cell floor was wet after he showered. The R&R
recommends denial of government's motion to dismiss and for summary judgement. The R&R was

North Central Region
Regional Couosel Quarterly Report
2nd Quarter, FY 1999

Page 3

received after the 10 day period in which to file objections. Settlement with plaintiff is being
discussed.

Knowles y. BOP, et al.t Case No. 97..z..264S, FCI Morence
Petitioner sentence deemed noo-:.parolable while he was at Fel Greenville., due to representations
made by AUSA When complaint was filed, we asked the court whether the sentence was to be
parolable. We were advised that it was to be parolable, and so advised the inmate. A parole hearing
was held and petitioner was released on parole. He filed a motion for costs, as he was a prevailing
party. We were unfortunately unable to find any precedent supporting the assertion that he should
not receive costs. On January 21, 1999, pursuant to a stipulation for dismissal and costs, the court
entered an order directing the USA to pay $346.18 in costs to petitioner in this mandamus action.

Christopher Lopez v, Randy Davis, Case No. 98-4158, FPC YaaktoD
Roderick W,lterv. AI Herrera' Cue No. 98-4192, FPC Yankton
Duaoe Larisog Va AI Herrera' Case No. 98-4142, FPC YanktoD
Peter Bm y. AI Herrera, Case No. 98-4174, FPC Yankton
In each ofthese cases the Court found that the BOP acted beyond its statutory authority when it used
tireanns enhancements as a basis fOT denying inmates early release eligibility under 18 U.S.C.
3621 (e)(2)(B). A notice of appeal has been filed in Lopez and we anticipate doing the same in the
other cases. There are currently nine cases which have been consolidated into one appeal before the
Eighth Circuit (Bellis v. Davis). The appeal brief in Bellis is due by March 12, 1999, and oral

argument has been slated for the second week of May 1999.
Scroger v' J,W. Booker. Ir" Cue No. 98-3260-RDR, USP Leavenworth

In this case, Scroger received a 2 level enhancement because loaded accessible firearms as weD as
drugs were discovered. Here. the court detennined that the BOP does not have authority to create
an additional eligibility requirement which conflicts with the plain language of the statute. This court' s
holding was Umited to invalidating the improper eligibility requirement. The court further stated that
the BOP's interpretation of3621(e)(2)(B) abrogating the statutory tenn "convicted"was not within
its discretion and was entitled to no deference by the court. .
Ward y. I. W. Booker. Jr,. Case No. 91-3174-RDR, USP Leavenworth
Ward was convicted ofa violation of21 U.S.C. 841(aXI) Possession with intent to distribute heroin.
His ofFense level was increased by 2 points because firearms were possessed in connection with the

offense. The merits were not addressed in this case, instead ripeness and failure to exhaust available
administrative remedies were asserted.

North Central Region
Regional Counsel Quarterly Report
2nd Quartc:r, FY 1999
Page 4

Guido v, Booker, Case No, 98-3266-RDR, USP Luvcnwortb
In this case, the BOP was ordered to consider Guido's early release eligibility notwithstanding his
IW<Hevel enhancement for weapons possession. The court relied huvily on the Fristoe y Thompson
case as binding authority. We have until MJlIch 8th to inform the court of the status of Guido's reevaluation.

Collins v, BUTeau of Pri5qn" et ~l" 97-WM-1533, USP Flonna
The Court dismissed the United States on sovereign immunity, however, it ·recommended the case .
go forward as plaintiff described in sufficient detail circumstances of his alleged assault by 4
correctional officers in the SHU on January 1996 at the USP. The Court ruled that, if true, the
allegations would violate the 8· Amendment. This is B "he said, we said matter that will probably
go to trial.
h

SEITLEMENTS OR JUDGMENTS
Joseph L. Divis v, Page True, ct II. D. KAn., Case No. 96-3316-GTV, USP Leavenworth
JoUph L. Davi, v, Warden Sieter, ct aI, S. D. oflll., Case No. 97-809-JPG, FC! Greenville
After consultation with the named defendants, and being informed of the reasons why it would be in
the best interest of the government to settle this case, Warden Booker agreed to settle the
Leavenworth civil action Rri~in8 out of the October, 1 P9S tn:uu:fer ofDavio from FeI Greonville to

USP wvenworth. In conjunction with the Leavenworth civil
FCI
also settle a case filed

a determination was made to

Bailey v, United Statg, Ca.sc No, 96-680-JPG, USP Mariop
This was originally filed as a mixed FfCA/Bivens action. We originaJly offered $33 in seltlemenl of
the administrative claim. The Bivens claim was dismissed and a tort claim seeking $209.55 for
property loss remains. In response to our motion for summary judgement, claims for loss of property
totaling $]02 was dismissed, leaving a total claim for S)07. The AUSA bas recommended that a
settlement offer be made for the amount of$)07.00. Due to the fact that the plaintiffbas sought to
amend his complaint and to include additional Bivens defendants and the cost of preparing for and
.
conducting a trial will far excud $107.

North Central Region
Regional Counsel Quarterly Report
2nd Quarter, FY 1999
PageS

Teich v. U.S.A. et al•• Case No. CV-S-98-01213-HDM, MCFP Springfield

Plaintifrs filed a BivenslFTCA action wherein they aUege wrongful death of a quadriplegic inmate
who died at the medical center. A settlement agreement was made for $88 000.00. The Magistrate
~ pressing for a $100,000 settlement and the AUSA stated that cases in her district were usually
worth more that the estimated value of$6,OOO - $50,000 range. Furthermore, the AUSA believed
that if the Judge had been presented with the £acts, a potential verdict would have exceeded the
-settlement amount ofS88,OOO.
11

DECISIONS OF INTEREST

Snow y. USA. 9I-CV-0161-PER, FCI GreenvUle
While inaIrca'ated at FeI Greenville, plaintitFfiJed suit under the FTCA claiming that during an open
movement, he was struck on the head ancl was rendered unconscious by unknown persons who
"inflicted mutilation upon his sexual organs destroying his genitalia." Plaintiff alleged that the BOP
was negligent in that employees &i1ed to prevent the unknown persons from obtaining a weapon and
failed to prevent the assault and mutilation.
The discretionary function exception to the fleA was argued in a motion to dismiss. The court
found that the protection of inmates falls within the discretion of prison officials and that prison
officials could not have breached their duty under 18 U.S.C. 4042 (providing that the BOP provide

safekeeping and protection for inmates). Judge Riley dismissed the case for lack of subject matter
jurisdiction holding that the discretionary fimction exception is a jurisdictional prerequisite to the suit.
The court did however, indicate that Snow may be able to state a Bivens, Eighth Amendment claim
in this matter.
Dodds y. Del Mpro, Cue No. 95-3011-RDR. USP Leavenwortb
On January IS, 1999, the Tenth Circuit Court of Appeals affirmed the decision of the district court.
In this case, the plaintiff sought damages because of alleged denial of medical care when staff failed
to eramiDe his Jamary 1993 m test results and also because he was not infonned of the test results.
Approximately a year later medical sta1F discovered plaintiffbad active TB, and that p1aintifr. January
1993 test result had been positive. It was undisputed in this case that plaintiffhad to be tested at Icasl
three times, and that plaintiff went without medical treatment for TB for thirteen months after the
positive test result was noted in his medical records. However, the facts do not entitle plaintiff to

reHefifno deliberate indifference to a serious medical need of plaintiff was demonstrated.
Massey and Otten v, Hetman ct aI, Case No. 97-1401, FCI Pekin

This case was initia1ly filed as a class action alleging that the BOP Health Services policy wu

North Central Region
Regional Counsel Quarterly Report
2nd Quarter, FY 1999
Page 6

UDCODStitutiona The complaint was joined by Dr. Otten who alleged that he was removed from his
position as Clinical Director after assisting the plaintiff in this litigation. The class claims were
disanowed in Iune of J998. On February 4, J999, the court nded that pJaintitrMassey could not
proceed on his claims based upon his tlWure to exhaust his administrative remedies. The court relied
heavily upon the Alexander v. Hawk opinion in readDng its decision. The court dismissed Dr. Otten» s
claims onjurisdictional grounds. This is the third Bivens'action for monetary damages that has been
dismissed in the Central District for failure to exhaust.
Taylorv. U.s, BOP, et al., 10tb eir. 1999, Case No. 98-31'6, USP Leavenworth
In this unpublished decision, the Tenth Circuit Court ofAppeals affirmed the decision of the district
court's denial of the petitioner's writ of habeas of corpus. In this case, the petitioner' challenged the

denial ofbis early release. The petitioner is serving a sentence for violations of 21 U. S. C. 841 (a)( 1)
and possession of a firearm by a convicted felon in violation of922 (g)(l). In reaching this decision,
the Court concluded that even ifthe BOP had exceeded its discretion in finding that a section 922 (g)
violation is a crime ofvioleoce, Taylor would not have been eligible for early release because he had
a prior conviction for aggravated assault.
Rahman v. Keohane. et aI., W.D. MO. Civil No. 97-3279-CV-S-RGC, MCFP Springfield
Inmate Rahman is serving a life sentence for crimes associated with the bombing of the World Trade
Center in New York City. This lawsuit alleged some 41 violations of plaintiffs constitutional rights,
as well as violations of the RFRA of 1993. On March 30, 1999, the Western District of Missouri

dismissed the case.
PENDING CASES OF INTEREST
Warden, rt .1. y, P,n·UI. Cue No. 95-8-13, FCI Englewood
This case involves allegations that inmates on a prison work assignment were exposed to asbestos,
There are seventeen inmate plaintiffs represented by counsel. The U.S. Attorney's Office filed a
motion to dismiss OD behalf of aU represented defendants, alleging, inter a1i~ that the Bivens claim
was precluded by J)emko and the Inmate Accident Compensation Act. The motion to dismiss was
pendjns for three years. The Magistrate Judge assigned to the case recently issued a report denying
the motion to dismiss on the Demko grounds.
Bustillo y. Hawk. Case No. 95-WM-2241, ADX Florence
On November 24, 1998, a hearing (video) was held on plaintifr~ motion for a preliminaty injunction.
In an Order tiled March 17, 1999, the Court denied the motion. In citing SCFC n,C.1nc y. Visa
USA Inc, 936 F.2d 1096. 109800-- CiI'. 1991). the Court noted that plaintiffhad failed to show any
evidence ofretaliation for exercise ofrus Farst Amendment rights to seelcjudicial redress~ that plaintiff

North Central Region
Regional Counsel Quarterly Report
2nd Quarter, FY 1999
Page 7

failed to show evidence of an Eighth Amendment violation or that he will suffer irreparable injury if
the injunction is not issued; that plaintiff failed to show competent evidence [actually showed none]
that he was denied due process in taldng of property and in disciplinary hearings; defendants
submitted campeteot evidence showing that plaintiff bas visited the law library and has regular access
to legal materials for use in his cell and that defendants showed campetent evidence wby he was not
allowed to use an ink pen and that plaintiff failed to show any actual injury.
Garrett v' Hawk, et al .. CRlIe No. 96-Z-1379, ADX F1oren~e
This ~ action (which was up on appeal of the administrative exhaustion initial dismissal) is back
in District Court for furthet' proceedings. The Court ordered plaintiff to show cause why the matter
should not be dismisst:d for failure to prosecute. Plaintiff s caunsel filed an inaccurate declaration
to the court asserting that legal staff at Florence were not properly responding to his inquiries and
stating that they had offered to provide him assistance in identifYing proper defendants. Legal staff
provided the USAO with a letter and declaration explaining that they did not and would not offer up
BOP Statrfor personal liability as defendants but that they were willing to provide addresses for staff
members ifplaintiffs caunseJ would provide the names. Plaintiffs counsel has not been forthcarning
with identifiable staff names.
Patricia Good Voice Flute v. Pine Medical Center, et aL, #98-1735, NCRO/FPC DuluthlFCI
Sandstone
Dr. Homeistet', from FPC Duluth is a defendant as well as the Pine Medical Center, St. Mary's Duluth
Clinic Health System and the Sandstone Medical Group. Plaintiff contends that BOP doctors and
contract medical fucility were responsible for the wrongful death of her inmate husband who suffered
from a fata1 heart attack while at FCr Sandstone. NCRO Legal staff have primary responsibility for

this case.
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 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 FC! Sheridan.
Greenville Disturbance Cases

In tbe aftermath of the October, 1995 disturlJance at FCr Greenville, some thirteen law suits have
been initiated alleging a panoply of civil rights violations. Because staff action was the subject of a
civi1 rights investigation and OlA inquiry, representation requests were scrupulously processod. Due
to miscanduct of some employees during the disturbance aftermath, and canflicts between employees,
several staffwet'C granted outside caunseJ and several others were denied representation. The Union
has been paying for representation by private counsel for some employees. The representation issue

North Central Region
R.cgional Counsel Quarterly R.eport
2nd Quarter, FY 1999

PageS

bas been a cooteDtious subject for Greenville staff. Processing and supervising these cases has been
a major drain on regi~ office sta1[ Several of these cases are moving toward a probable trial. We
have settled one, and hope to settle several more.
RELIGIOUS FREEDOM RESTORATION Acr CASES

None.

upCOMING HEARINGS OR TRIALS
Ws£law y. Gilkey. et II.. Case No. 99-CV·0526, MCC Chicago
Inmate alleges he should remain at MCC Chicago, and not be transferred to FDC Oakdale pursuant
to an INS detainer. Petitioner was transferred to FDC Oakdale. He subsequently filed motion to
hold the respondents in contempt of court for the transfec while the habeas petition was pending. The
Court ordered the plaintiffto file a brief in support of mObon to show cause and R.espondents to file
a motion to dismiss. Status hearing held on March 18, 1999. The judge dismissed the case without
prejudice for want of prosecution on April 1, 1999. Counsel for the plaintiff failed to appear at the
last two status hearings, and failed to file any further motions/responses.

Merritt fa Hawk. et aI.. Case No. 9S-Z-26S3, ADX FloreDce
A bearing was held regarding plaintiff's attempt to reactivate a TRO request he filed in late 1995.
Specifically, plainti1rwas concerned that his placement in an ADX general population unit put his life
in jeopardy. At the hearing, plaintiff asserted that he only wanted to be guaranteed no physical
contact with other inmates and single recreation. He is already receiving those things and the BOP
does not intend to do otherwise with him. The hearing turned into a settlement conference with no
final outcome. Clearly, the TRO will not be issued, as the court does not believe a threat to his
immediate safety exists. Oral argument on the outstanding motions in the underlying case set for April
22, 1999.
Martinp fa Copnts' et aL Case No. 9O-3114-CV-8-4, MCFP Springfield

The issue was whether a decision to have inmate Martinez work while he was on pr~tria1 status
resulted in punisbment prohibited by the Fifth Amendment. On March 30, 1999, a verdict was given
in favor oCthe deCendants. Inmate Martinez Iw advised the legal staff that he will pursue another
appeal. The jury deliberated for about one hour and the Judge's evidentiary rulings were quite
favorable to inmate Martinez.

•

North Central Region
Regional Counsel Quarterly R.eport
2nd Quarter, FY 1999
Page 9

CRIMINAL MATIERS

u.s. v. Riddle and Black, USP Florence
Inmate Black pleaded guilty to aggravated assault and was sentenced to 73 months consecutive.
Inmate Riddle changed plea to guilty ofVohmtary MansJaughter and 4 counts of assault on staff.and
is set for sentencing May 11.

u.s. y. Miller, Cue No. '8-10046, FCI Pekin
The defendant was found guilty in November of 1998 of Possession of Contraband Inside a Penal
Institution and Possessi~ with Intent to Distribute Heroin. This finding placed the inmate in "Career
OJI'ender" status. On March 5, 1999, he was sentenced to a consecutive term of imprisonment 0(210
months.

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

Tower 1/, 8th Floor
400 State Street
Kansas City, KS 66101-2421

July 9, 1999

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

JOHN R. SHAW, Regional Counsel

SUBJECT:

Quarterly Report (3rd QTR FY 1999)
(April 1, 1999 - June 30, 1999)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS
LITIGATION:

INST

NUM

HC

FTC

BIV

OTH

ANS

PEN

CLD

HIT

SET

AWD

1Qtr

NCR

133

65

17

32

19

48

483

69

16

5

0.00

2Qtr

NCR

181

111

15

37

18

62

503

75

12

3

0.00

3Qtr

NCR

136

86

10

28

12

76

519

101

11

1

0.00

NCR

450

262

42

97

49

186

519

245

39

9

000

4Qtr

Total

NUM - Number of total lawsuits flied In the month
HC - 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 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
SET - Number of settlements
AWD - Number of Awards'

North Central Region
Regional Counsel Quarterly Report
3rd Quarter, FY 1999
Page 2

ADMINISTRATIVE CLAIMS:
1st QTR (Oct - Dec)

2nd QTR (Jan-Mar)

3rd QTR (Apr - Jun)

228

236

262

4th QTR (Jul- Sep)

'.

Pending '320

ADMINISTRATIVE REMEDIES
1st QTR (Oct - Dec)

2nd QTR (Jan-Mar)

3rd QTR (Apr - Jun)

668

624

652

Total for Fiscal Year 1944
FREEDOM OF INFORMATION ACTIPRIV ACY ACT REQUESTS
FOIIPA
Received

FOIIPA
Processed

1st QTR

202

207

2ndQTR

219

221

3rdQTR

232

255

4thQTR
Total for Fiscal Year 653

4th QTR (J ul - Sep)

North Central Region
Regional Counsel Quarterly Report
3rd Quarter, FY 1999
Page 3

ADVERSE DECISIONS
The following RDAP cases are being currently appealed:
South Dakota
1. Bellis v. Davis (enhancement, 922(g)
2. Pierson v. Davis (enhancement)
3. Shields v. Davis (enhancement)
4. Miller v. Davis (enhancement)
5. Cook v. Davis (enhancement)
6. Clark v. Davis (enhancement)
7. Winston v. Davis (enhancement)
S. Walker v. Davis (enhancement)
9. Lopez v. Davis (enhancement)
10. Martin v.·Davis (enhancement)
11. Betz v. Davis (enhancement)
12. Walter v. Davis (enhancement)
13. Larison v. Davis (enhancement)
Oral argument was conducted on May 12, 1999, before the Sth Circuit in S1. Louis. We await the Sth
Circuit decision pertaining to these cases as this decision will effect a borage of other cases in the
districts that are pending the Bellis decision.
We also have adverse opinions in five other cases.
Minnesota
1. Zacher v. Tippy (prior conviction)(brief filed)
Colorado
1. Hicks v. Brooks (enhancement)
Kansas
1. Guido v. Booker, 9S-3266-RDR (enhancement)
2. Scroeer v. Booker, 98-3260-RDR (enhancement)
3. Ward v. Booker, 98-3274-RDR (enhancement)
In these 3 cases, the District Court found that the Director of the Federal Bureau of Prisons exceeded
her authority in denying relief to petitioner's under 18 U.S.C. section 3621 (e)(2)( B) ~ascd on a
sentence enhancement for possession of a firearm.

North Central Region
Regional Counsel Quarterly Report
3rd Quarter, FY 1999
Page 4

Okai v. Federal Bureau of Prisons, Case No. 97-549-DRH, FCI OxfordIFCI Greenville
The plaintiff in this case used the Freedom of Information Act to request documents related to the
October 1995 disturbance at FCI Greenville. The BOP released some documents and withheld
others by asserting various exemptions under the FOIA. The Magistrate issued an R&R that denied
the BOP the use of the "law enforcement records" exemption found at 5 USC § 522(b)(7)(C) for 19
documents. Subsequently, a Memorandum and Order issued by the Judge in this case, mistakenly
denied the BOP exemptions under § 522(b)(7)(c). As a result, we have requested that the order be
appealed and that the DOJ Office of Information Privacy handle the appeal.

Shockey v. T.C. Peterson, Case No. 99-247, FCI Sandstone
Petitioner alleges he was determined to be provisionally eligible for 3621 e release in March 1996.
A Change Notice to the Crime of Violence Program Statement in May, 1996 added his offense to
a crime of violence. Petitioner was never advised and withdrew from a vocational program to
participate in RDAP. His sentence was re-computed to reflect the one year off. Upon transfer, staff
reviewed his 3621 e eligibility and determined he was not eligible. His sentence was re-computed
to reflect the loss of 3621 e, which petitioner alleged the BOP cannot do as it is retroactive and
violates.ex post facto. Petitioner requested the restoration of3621e release. Received an Adverse
R&R recommending sentence to be recalculated to show year off. Petitioner is currently at the
MCFP. After consultation with OGC staff it was determined to restore the Petitioner's eligibility,
and the Petitioner will deemed eligible.

SETTLEMENTS OR JUDGMENTS
Strong v. United States, USP Leavenworth
FTCA action for lost/stolen luxury Cartier eyeglasses which were allegedly valued at $950.00
In this case, Strong sought compensation to replace his Cartier prescription eyeglasses that were
stolen from the Health Services Administrator's office in September 1997. Since there were several
concerns about the factual circumstances surrounding the theft of these glasses, (box containing 13
pairs of inmate glasses were stolen), a decision was made to see whether or not the inmate would
accept the original offer that was given to him in 1997, ie, replacement glasses (top of the line) from
Duffins optical. Strong agreed to the offer as long as he would be able to have his eyes examined in
the near future. On June 25. 1999, Strong saw the Duffins representative to pick his frames and on
July 1, 1999, he had his eyes examined. This case was settled for approximately $221.00 which will
be paid out of the U.S. Attorney's Settlement Fund directly to Duffins optical.

North Central Region
Regional Counsel Quarterly Report
3rd Quarter, FY 1999
Page 5

DECISIONS OF INTEREST
Donna Buford, as legal luardian for Kendon Leger, a minor v. United States of America,
Case No. 97-2263-JWL, USP Leavenworth
In this FTCA wrongful death action, plaintiff s decedent was killed in the USP, Leavenworth Special
Housing Unit (SHU) by a fellow inmate during recreation. Plaintiff was represented by private
counsel. After discovery, including depositions of numerous staff and inmate witnesses, the United
States filed a motion for summary judgment citing the discretionary function exception to the FTeA
as well as failure to state a claim under Kansas negligence law. The plaintiffs case after discovery
alleged staff negligence in four security related areas: 1) Failure to conduct cell searches every ten
days; 2) Failure to search the recreation pen; 3) Failure to utilize a trans frisker on inmates; 4) Failure
to pat. search inmates going to recreation. The court ruled in favor of the United States under the
discretionary function exemption on all above issues, with the exception of the failure to pat search.
Because Plaintiff submitted affidavits from both the murderer as well as an inmate witness which
indicated they were not pat searched, the discretionary function exemption was not applied.
However the court ruled in favor of the United States under pure negligence analysis regarding the
pat search issue. The court held that before liability could be imputed under Kansas law, plaintiff
must offer evidence indicating that prison employees knew, or should have known, of the risk posed
by the aggressor to the victim, and then failed to take sufficient actions to prevent a subsequent
attack. Because the evidence failed to establish during discovery that staff knew or should have
. known of an impending attack, the court dismissed this claim as well.

Nowicki v. J. T. O'Brien,98-C-875-C, FCI Oxford
Petitioner alleges that we have violated 18 U.S.C §3658 by refusing to credit presentence time he
spent in state custody against his current federal sentence. Respondents maintained that the time the
petitioner is requesting was based solely on state charges before a federal detainer was lodged. The
Court agreed and held that respondent properly refused to grant such credit because the time
petitioner spent in state custody was not connected with offense for which the federal sentence was
imposed. However, the Court noted that nothing in the record or in petitioner's allegations suggested
that his custody was affected by the mere issuance of the probation warrant, as opposed to the
lodging of the detainer. In Doyle v. Elsea, 658 F.2d 512 (7th Cir. 1981), the petitioner adduced
evidence that he was unable to post bail as a direct result of the issuance of the federal "'arrant.
Hence, the court in Doyle held that as a "practical matter" he was in pretrial custody hin connection
with" his federal charges. As a result, the Doyle court found he was entitled to credit for time spent
in pretrial custody prior to the detainer. Consistent with Doyle, the Court hints that the petitioner
may be entitled to the time he seeks if he can make a similar showing and exhausts his remedies,
The Court is in essence encouraging the petitioner to pursue a new angle.

North Central Region
Regional Counsel Quarterly Report
3rd Quarter, FY 1999
Page 6

Epps v. USA. et al •• Case No. 99-3002, MCFP Springfield
In this habeas corpus case, petitioner alleged deliberate indifference to his medical needs by not
considering him for a kidney transplant and/or compassionate release. The Court found that
petitioner failed to demonstrate that respondents have been deliberately indifferent to his serious
medical needs because he has failed to demonstrate that he is currently eligible for a transplant
through the BOP and is being denied that transplant. The Court also found that while he was seeking
admission into a transplant program, he has not, to date, provided evidence of financial ability to
pay, nor a written letter of acceptance from a transplant program. There is nothing to preclude
petitioner from being accepted into a transplant program, provided that he satisfies the eligibility
requirements. Based on the record at the time, the Court recommended dismissal without prejudice
to his right to pursue these claims in his district of confinement should he find the need to do so.

PENDING CASES OF INTEREST
Stewart v. Seiter. et al., Case No. 96-983-GPM, FeI Greenville
On April 11 , 1999, the Court issued an order setting aside the default judgment against defendants
Seiter and Allen previously entered by the Magistrate. The District Judge construed the previous
orders as Reports & Recommendations and construed defendant's appeal as objections to the R &
R. The Judge relied upon 42 U.S.C.§ 1997e(g), a section of the PLRA which provides that '''[a]ny
defendant may waive the right to reply to any action brought by a prisoner under section 1983 of this
title or any other Federal law," and that "such waiver shall not constitute an admission of the
allegations contained in the complaint." 42 U.S.C. § 1997e(g)(l). This section also provides that
"[n]o relief shall be granted to the plaintiff unless a reply has been filed." Id.
Turner v. USA, Case No. 97-S-1340, ADX FlorencelUSP Florence
The Court held a TRO hearing on plaintiff s claim that his life was in danger because he was being
poisoned by ADX staff. A recommendation favorable to the government was issued and adopted
by the Court. Additionally, Judge denied the government's Motion for Summary Judgement in
underlying case. A favorable R&R which recommended dismissal was adopted in part and rejected
in part. The Court dismissed the medical claims; punitive damage claims; request for a ,u~ trial:
and request for an advisory jury. Court declined to dismiss the negligence claim. findln~ that there
is a genuine issue of material fact with respect to whether the defendant's employees had reason to
know that placing inmate in the cell with plaintiff would lead to the altercation which cn~ucd Co un
notes that there are additional questions regarding the causation of plaintiff's injuric~ (due to his
admission that he, not the other inmate. started the fight) which cannot be resol\'cd un ~ummaJ)
judgement.

North Central Region
Regional Counsel Quarterly Report
3rd Quarter, FY 1999
Page 7

Moore v. Cooksey, et aI., Case No. 98-WM-2321, ADX Florence
Plaintiff claims violations of his 14th Amendment rights of due process. He claims that he was
illegally placed in the ADX Control Unit, and that falsified documents were used to justify the
placement. He also alleges that he falls under the Americans With Disabilities Act (ADA) because
of his medical condition and that as a result he was not to be placed in the Control Unit as inmates
with "major physical disabilities" cannot be placed in the Control Unit.
Merritt v. Pugh, Case No. 97-Z-2118, ADX Florence
Habeas petition wherein inmate seeks to challenge very old disciplinary actions. Court allowed him
to amend petition after response already filed by government. Petitioner now seeks to challenge 62
separate disciplinary actions between 1988 and 1991. We renewed our objections to the amendment
and argued prejudicial delay and failure to exhaust.
Williams v. Pitt & Bowens, Case No. 96-597-JPG, FCI Greenville
Magistrate Judge issued a Proposed Findings of Fact and Conclusions of Law in this case which
arose out of the 1995 Disturbance at FCI Greenville. The Magistrate recommended that judgment
be entered against plaintiff because of insufficient proof that the defendants caused the alleged
constitutional violation.
Good Voice Flute v. United States of America, Case No. 99-874, FPC Duluth/Fel Sandstone
FTC A action alleging that the medical treatment of a heart attack provided to inmate Harold Good
Voice Flute by defendant and others was the proximate cause of his death at FeI Sandstone in 1996.
This case is related to Patricia Good Voice Flute v. Pine Medical Center. et al.. #98-1735. \\'hich
NCRO is coordinating. The latter case was naming the Medical Center and doctors. as well as BOP
staff. The plaintiff is now attempting to recover from the USA under FTCA.

RELIGIOUS FREEDOM RESTORATION ACT CASES
Patel v. Wooten, Case No. 96-M-0286, FCI Florence
RFRA case challenging religious diet at FCI Florence. The four individual defendants hu\ e recci\'cd
outside counsel and the plaintiffwas appointed counsel. This case was originall~ dlsml~sed hy the
District Court under RFRA. the 1Qlh Circuit Court of Appeals reversed and remanded. with statemcnt
that RFRA was unconstitutional. Plaintiffs response was extended. pending attempb to settle:
(inmate wanted guarantee he would be allowed to purchase protein powder and hean pies from
commissary at any BOP facility). Settlement cannot be accomplished because it is a~aln~t national
policy on protein powder.

North Central Region
Regional Counsel Quarterly Report
3rd Quarter, FY 1999
Page 8

UPCOMING HEARINGS OR TRIALS
Okai v. Verfurth, et al., Case No. 96-47, FCI Greenville (1995 Disturbance case)
This Bivens action alleging excessive use of force during the aftermath of the 1995 disturbance was
set for a jury trial to begin on Wednesday, July 28, 1999. Paul Brown and Jesselyn Brown from
Main Justice will be litigating the case.

McCoy v. Nelson, et al., Case No. 96-790, FCI Greenville (1995 Disturbance case)
A hearing has been set for July 16, 1999 at 8:30 AM to resolve the pending Plaintifrs Motion to
Compel the Production of Documents. FeI Greenville was served with a subpoena for documents
in this excessive use of force action. Some documents were provided, while others were withheld.
U.S. v. McElhiney, USP Leavenworth
On a daily basis, issues arise in connection with the prosecution of inmate Michael McElhiney, Reg.
No. 04198-097. The trial date is July 19, 1999, unless postponed again. Several Sealed orders have
been sent to the warden's office and Legal Office recently for delivery to McElhiney. Each order
has been personally delivered by legal staff. Legal staff have been instructed that the information
contained in the orders is not to be shared with the prosecutor or case agent. USP Leavenworth staff
and NCRO staff continue to facilitate numerous legal calls and requests each week between
McElhiney and Private Investigator, Goad.

CRIMINAL MATTERS
u.s. v. Riddle, USP Florence
Inmate pleaded guilty to voluntary manslaughter and 4 counts impeding staff. At sentencing. judge
declined to sentence per the plea agreement and threw out the additional time for assaulting stafT.
Inmate sentenced to 10 years consecutive to outstanding terms.
U.S. v. Zepeda, Case No. 98-10073, FCI Pekin
Inmate charged with Assault with Intent to Commit a Felony following an incident on Jul~ 4. 1998.
The inmate was sentenced to a consecutive term of 77 months on April 15. 1999. Tht: gO\ cmmcnt
agreed to drop a second count of Possession ofa Weapon Inside a Penal Institution in t:x,hangc for
a waiver of appeal.

U.s. v. Alvarado, USP Leavenworth
Inmate Alvarado pled guilty on April 4, 1999 to possession of a weapon in violation of 18 U .S.C.

North Central Region
Regional Counsel Quarterly Report
3rd Quarter, FY 1999
Page 9

Section 1791(a)(2) was sentenced on June 21, 1999 to a (30) thirty month consecutive sentence, a
$100.00 Special Assessment and 3 years supervised released.

u.s. v. McElhiney, USP Leavenworth
On a daily basis, issues arise in connection with the prosecution of inmate Michael McElhiney, Reg.
No. 04198-097. The trial date is July 19, 1999, unless postponed again. Several Sealed orders have
been sent to the warden's office and Legal Office recently for delivery to McElhiney. Each order
has been personally delivered by legal staff. Legal staff have been instructed that the information
contained in the orders is not to be shared with the prosecutor or case agent. USP Leavenworth staff
and NCRO staff continue to facilitate numerous legal calls and requests each week between
McElhiney and Private Investigator, Goad.