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u.s. Department of Justice

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Federal Bureau of Prisons
North Central Region

Kansas City, KS 66101-2492

July 5, 1996
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

QUARTERLY/MONTHLY REPORT (June 1996)

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LITIGATION. CLAIMS. AND APMINISTRATIVE REMEPY STATISTICS

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Bussell Rice v.

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p.W. Keohane, Civil No. 96-3133-CV-S-RGC, (W.D.Mo.), USMCFP

The inmate in this case is seeking a compassionate release or in the alternative a
kidney transplant. USMCFP and NCRO medical staff have recommended him for a
compassionate release because the inmate has exhausted all of his access points
for dialysis. The magistrate concluded that while recommending compassionate
release is within the Bureau's discretion, if such a release is denied, he would
require the BO P to show cause why the failure to provided a kidney transplant is
not deliberate indiffe·rence.
The matter is complicated by the fact that the state of New Jersey has a detainer
lodged against the inmate. As of this writing steps were being taken by that
sovereign to grant the inmate executive clemency so that the inmate could be
released to the community.
Dayid Sterling y. USA, Civil No. 95-1459, (Seventh Circuit), USP Lewisburg and
USP Marion.

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On June 3, 1996 the Seventh Circuit addressed a novel issue: whether someone
who files and loses a Bivens suit against a federal employee is entitled to pursue a
FTCA action against the United States. In this case, David Sterling orginally sued
C.O." Miller in the Middle District of Pennsylvania for a lost duffel b~g containing
legal materials. While the suit was pending, Sterling escaped. Judge Caldwell
dismissed the suit as an application of the fugitive disentitlement doctrine. After
his recapture, Sterling filed another suit for the loss, this time against the United
States under FTCA, in the Southern District of Illinois. Judge Stiehl viewed the
Bivens and the FTCA suits as identical claims, and held Sterling's loss on the
former meant he must lose on the latter as well.
Circuit Judge Easterbrook found that a decision in the employee's favor is not
" automatically preclusive in the United States' favor. When sequental suits name
different parties, only issues actually and necessarily decided in the first case carry
over to the second under the doctrine of issue preclusion. Here the court found
that the issue of negligence for the lost property had never been decided. Judge
noted the United States may very well prevail on the FTCA claim, but Sterling w~s
entitled to proceed with the case.
SETTLEMENTS OR JUpGMENTS

None.

DECISIONS OF INTEREST

DeWayne Murphy y. Janet Reno. et aI., Civil No. 4-95-678, (D. Minn.), FMC
Rochester
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The inmate in this case sued numerous offials after he was denied a heart

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transplant. The inmate died after the complaint was filed and his attorney filed a
motion to dismiss without prejudice pursuant to Fed.R.Civ.P. 41 (a)(l). The court
granted the motion but conditioned any refiling of the complaint on payment of the
costs and legal fees the defendants incurred defending against the original
complaint.
pENplNG CASES OF INTEREST

pedersen V. Reno, Civil No. 5-95-304, (D.Minn.), Unicor/FPC Duluth
The plaintiff in this case is a current BOP employee who alleges she was paid less
than other factory managers just because she is a woman. The NCRO sent
admission requests, interrogatories and production requests to UNICOR for
response. Plaintiff's attorney has stated her client is willing to take $25,000 in
settlement.
RELIGIOUS FREEDOM RESTORATION ACT CASES

No new cases to report.
CRIMINAL MATTERS

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FCI Oxford Sentencing, Western District of Wisconsin
. On June 7, 1996 three inmates were sentenced for their roles in the October 1995
disturbance at FCI Oxford. They were convicted of Mutiny and Destruction of
Government Property. Inmate Overstreet, Reg. No. 06844-029, was sentenced to
24 months, inmate Warren, Reg. No. 05528-041, was sentenced to 16 months,
and inmate Garner, Reg. No. 04245-089 was sentenced to 16 months.
In addition, inmate Bunch, Reg. No. 06881-061, plead guilty to Possession of a
Weapon During a Disturbance and received a 24 month sentence.
FPC Yankton Resentencing Hearing, District of South Dakota
Inmates Love and Dougan are being resentence on July 8, 1996 for convicting the
crime of Escape. The Eighth Circuit vacated the previously imposed sentences
because the district court erred in holding that the government had the burden to
showing the FPC was a secure facility. The court mistakenly found that the FPC
was similar to a half-way house and awarded a downward departure. Witnesses
from the NCRO and FPC Yankton are testifying on behalf of the government.
ADMINISTRATIVE CLAIMS ANP OTHER MATTERS OF INTEREST

Prison Litigation Reform Act, FCI Englewood and Florence Complex

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The NCRO assisted FCI Englewood, the Florence Complex and the U.S. Attorney's
Office for the District of Colorado with formulating the procedures inmates must
use when filing in forma pauperis lawsuits under the PLRA.
Special Mail Restrictions, AD X Florence
After receiving information that inmates Archambeault, Reg. No. 46789-079, and
Pfeffer, 00543-088 were using the special mail privilege to facilitate a scheme to
obtain fraudulent tax refunds from federal and state entities, ADX Warden
Hershberger requested authority to open the inmates incoming and outgoing legal
mail. NBC's "Dateline n ran a story on Mr. Archambeault last year and re-broadcast
the story this June. The NCRO researched the matter and advised Warden
Hershberger that the inmates' outgoing mail could be inspected for contraband, but
not read.
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STAFF TRAVEL AND LEAVE
John

None Scheduled

Daryl

Annual Leave

July 2-12

Dan

Annual leave

July 19

Gwen

NABCJ Conference
St. Louis

July 15-18

Annual Leave

July 19

Paralegal Training
Denver STC

July 15-26

Annual leave

July 29-31

Paralegal Training
Denver STC

July 15-26

Gary

Annual leave

June 28-July 12

Janet

None Scheduled

James

Janice

FTCA database WAN to Mary Rose Hagan on June 26, 1996.

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