U.S. Department of Justice

Federal Bureau of Prisons
North Central Region

Kallsas City, KS 66101·2492

November 8,1996
MEMORANDUM FOR WALLACE H. CHENEY, ASSISTANT DIRECTOR
GENERAL COUNSEL & REVIEW
FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

MONTHLY REPORT (October 1996)

LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS

LITIGATION :
JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

37

31

40

37

35

25

26

25

30

27

NOV

DEC

NOV

DEC

NOV

DEC

Total for Calendar Year 318
870

Pending

ADMINISTRATIVE CLAIMS:
JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

118

119

115

106

74

45

65

55

89

71

Total for Calendar Year 857

352

Pending

ADMINISTRATIVE REMEDIES:
JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

242

220

167

237

180

155

148

185

160

192

2

Total for Calendar Year 1895

ADVERSE DECISIONS

Moore v. U.S. Bureau of Prisons, D. Kansas Case No. 89-3121-RDR, FCI Milan
After remand from the 10th Circuit Court of Appeals in 1994, a one day trial was finally
held on October 17th, in this FTCA lost property case arising out of Milan. The case
was filed in the District of Kansas due to plaintiffs "residence" (incarceration) in the
Kansas state system. Judge Rogers found in favor of the plaintiff, for the sum of
$500.00. Plaintiff had sought $24,479.00 for the property, primarily legal papers. No
appeal will be recommended.

SETTLEMENTS OR JUDGMENTS

Dixon v. United States. et aI., D. Kansas Case No. 94-3309-RDR, USP Leavenworth
This is the assault FTCA\Bivens case previously reported. The United States has
offered to settle this matter for $3,000. The plaintiff countered with a demand for
$10,000. An offer for $3,500 was communicated to the plaintiff's attorney the first week
of November.

Moen v. United States, D. Minnesota Case No. 5-95-226, FPC Duluth
Opposing counsel dramatically decreased her demands in this slip and fall case
involving a visiting child at FPC Duluth. What started out as a demand for one half a
million dollars has decreased to a $10,000 claim. The AUSA wants to try the case but
has been given authority to settle for $3,000 to avoid costs of litigation. Trial is
scheduled for the second week of December 1996.

DECISIONS OF INTEREST
None to report.

PENDING CASES OF INTEREST

Johnson v. USA, N.D. Illinois Case no 96-C-570B, MCC Chicago

3

Administrator of a deceased inmate's estate has sued the United States for negligence
allegedly leading to the inmates death. The inmate committed suicide while housed in
a community corrections center in June 1993.
Kalka v. United States, D.Colorado Case No. 91-0-753, FCI Englewood
The evidentiary hearing scheduled for October 28, 1996 was continued. After Mr.
Kalka refused to sign a document that declared he was without funds, appointed
counsel concluded that Mr. Kalka was not entitled to their assistance and motioned
requesting to be removed from the case. The hearing has been re-scheduled for March
1996.

Lozano v. Reno, D. Colorado Case No. 95-C-2661, FCI Florence
NCRO coordinated responses by the BOP's Security and Background Investigation
Division and FCI Englewood to plaintiffs discovery requests. The Office of Personnel
Management, a co-defendant, has not provided the BOP authorization to release
copies of background investigations in its possession. The AUSA defending the action
is seeking relief from OPM on this issue.

Pedersen v. Reno, D. Minnesota Case No. 595-304, FPC Duluth
Depositions of former FPC Duluth staff members were taken during the second week of
October. The plaintiff and Unicor executives are expected to be deposed in November
and December. Additional discovery was forwarded to Unicor and PPM for action.

RELIGIOUS FREEDOM RESTORATION ACT CASES
None to report.

CRIMINAL MATTERS

United States v. Thomas Whitlow, D. Kansas Case No. 2:95-CR-20039-001.
Inmate Whitlow was sentenced to 71 months for Mail and Wire Fraud on July 2, 1996.
With our assistance as to language, Judge Vratil included in her sentenCing of Mr.
Whitlow that he not be allowed any use of a telephone during his term of incarceration.
Inmate Whitlow was designated to FCI Florence.
Unfortunately, in October of 1996, staff became aware that Mr. Whitlow had instituted a
telephone fraud plan identical to the one that led to his conviction. The scheme

4

involved defrauding elderly people by pretending to be a favorite grandson and then
requesting money be sent to him due to an emergency. This plan was apparently
carried out in spite of the institution prohibiting inmate Whitlow from having a Personal
Identification Number or an authorized phone list. He utilized another inmateaccomplice's phone card and PIN .
We have recently written to Judge Vratil advising her of the situation. The case has
been referred to the FBI for possible prosecution.

United States v. McGruder and Ford, FCI Florence
Inmates charged with violations of 18 USC 111 (a) and (b) as well as one count of
rioting . These are the two inmates who threw officer Rodenbeck off of the second floor
of the Otero Unit on October 26 , 1995. Arraignment 11/4/96

United States v. Chitwood, FCI Florence
Inmate charged with two violations of 18 USC 111(a) and (b) as well as one count of
rioting . He assaulted one staff member on the compou nd and then assaulted another
inside Otero unit. Arraignment 11/4/96.

ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST

None to report.

STAFF TRAVEL AND LEAVE

e

John

None Scheduled

November 27,29

Daryl

Annual Leave

November 27,29

Dan

None Schedule

Tom

Annual Leave

Gwen

None Scheduled

James

Annual Leave
House Hunting

Janice

None Scheduled

November 27,29

November 1
November 12-15

5

Janet

Annual Leave

November 27,29

Gary

Annual Leave

November 6, 18-22

Claims database WAN to Mary Rose Hagan on November 4, 1996.

u.s. Department of Justice

(

Federal Bureau of Prisons
North Central Region
Kansas City, KS 66101-2492

October 4, 1996
DI~ECTOR

MEMORANDUM FOR

WALLACE H. CHENEY, ASSISTANT
GENERAL COUNSEL & REVIEW

FROM:

JOHN R. SHAW, Regional Counsel

SUBJECT:

QUARTERLY/MONTHLY REPORT (September 1996)

-;' o-

j

~.

LITIGATION. CLAIMS. AND APMINISTRATIVE REMEDY STATISTtCS
LITIGATION:
JAN

FEB

MAR

APR

MAY JUN

37

31

40

37

35

25

JUL

AUG

SEP

26

25

30

JUL

AUG

SEP

65

55

89

OCT

NOV

DEC

OCT

NOV

DEC

OCT

NOV

DEC

Total for Calendar Year 291

(

873

Pending
ADMINISTRATIVE CLAIMS:
JAN

FEB

MAR

APR

MAY JUN

118

119

115

106

74

45

Total for Calendar Year 786

381

Pending
·ADMINISTRATIVE REMEDIES
JAN

FEB

MAR

APR

MAY JUN

JUL

AUG

SEP

242

220

167

237

180

148

185

160

155

Total for Calendar Year 1703

2868

2
ADVERSE PECISIONS

(

Foster Sellers v. United States, 7th Cir. Case No. 96-104, USP Marion
For the third time, the Seventh Circuit has remanded this case to the district court.
Sellers alleges that USP Marion staff lost or misplaced $1,700 worth of law books
in 1983. Following a bench trial to a magistrate through which Sellers received
damges for the loss of some property, the court dismissed his claim as to the legal
books. The Court of Appeals reversed and remanded in a published opinion, Sellers
V. United States, 902 F.2d 598 (7th Cir. 1990). Following the remand, the
magistrate again made findings and dismissed the case as to the law books. The
Seventh Circuit remanded in an unpublished opinion, Sellers v. United States, 7th
Cir. Case No. 93-1780. On remand, the district court determined BOP staff had
not lost any law books. The Seventh Circuit again has remanded. Institution legal
staff are considering options with the U.S. Attorney's Office.
United States V' S.A., D. Minnesota Case No. 4-96-184, FMC Rochester

c.

S.A. is a 21 year old offender sentenced to the custody of the Attonrey Genral
under the JDA. As he neared his 21 st birthday, staff attempted to locate state
placement for S.A. When none was available, commitment pursuant to 18 USC
4246 was initiated. Counsel for the offender objected on jurisdictional, grounds to
the extent that a juvenile is never charged with or convicted of a crime, but rather
is adjudicated a delinquent. The Magistrate Judge agreed and recommend
dismissing the petition on jurisdictional grounds. After consultation with DOJ staff
and BOP staff, objections have been filed 'and are pending.
SETTLEMENTS OR JUDGMENTS

None.
PECISIONS OF INTEREST

None.
pENDING CASES OF INTEREST

Del Raine V. Carlson. et ai, S.D. III. Case No. 79-2340, USP Marion
This case was recently remanded back to the district court for third time from the
Court of Appeals. The case arose as a result of the plaintiff's transfer to USP
marior;1 and placement in the Control Unit in 1972. While a 1973 hearing and
findings by the district court determined that the plaintiff had not been provided
with due process, the court left unresolved any issue of damages. Counsel has
been retained and the court has left to resolve the issues of personal involvement
by the named defendants and the issue of damages, if any to the extent named
parties caused a due process violation.

2869

3
Kalka v. United States, D.Colorado Case No. 91-0-753, FCI Englewood

(

The case is scheduled for an evidentiary hearing in October, 1996. The complaint
was initially filed with four plaintiffs alleging over 100 conditions of confinement at
FCI Englewood resulted in unconstitutional conditions of confinement. The issues
have been narrowed to four, and the major remaining issue is whether the absence
of some mechanical method of introducing fresh or treated air violates the Eighth
Amendment. The BOP has taken the position that each cell at the FCI has one or
more windows which can be controlled by the occupants, allowing in~roduction of
fresh air as desired.
Tyler v. VerefQrtb, et ai, S.D. III Case No. 96-046-JPG & Okai y. Verefurtb. et ai,
S.D. III. Case No, 96-047-JPG, FCI Greenville
These two similar cases contain allegations 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 administrative disciplinary action against some of the defendants for conduct
involving other inmates. We are working closely with DOJ staff in an attempt to
obtain government representation for the staff involved. No decision has been
made by DOJ.
perse y. United States, et ai, D.Colorado Case No. 96-WY-1739, FCI Englewood

('
"'"

Marc Perse was an officer with the Colorado Department of Corrections. While
involved in a joint training session with FCI Englewood staff at the U.S. Air Force
Academy, Mr. Perse was killed in a tragic rapelling accident. His surviving spouse
has filed a multi million dollar law suit against the United States under the FTCA
alleging his death was caused by the negligence of BOP employees .
. Maurice MQore v. United States, D. Kansas Case No.

,

USP Leavenworth

Maurice Moore, now a Kansas state prisoner, alleged BOP staff lost personal
property in 1988. The action was dismissed twice by the district court, once on
statute of limitations grounds and once on the merits. The 10th Circuit Court of
Appeals reversed and remanded both times. The matter is set for trial in Topeka,
Kansas on October 17, 1996. BOP employees Brad Semark and Larry Campbell are
witnesses.
RELIGIOUS FREEPOM RESTORATION ACT CASES

Fountain (Scott A.l v, RenQ, et aI., D,D.C. Case No. 96-1386, ADX Florence
ADX Florence inmate claims religious need for no flesh and no egg food tray
Claims common fare does not meet his needs. Argues PS 5360.06 and Common
Fare plan violate RFRA. Filed in District of Columbia against Hawk and Reno
seeking injunctive, declaratory and monetary relief.
I

2870

4
Keith v. BQQker, D. CQI., Case NQ. 94-N-2844, FCI FIQrence

(

A Stipulated Motion to Dismiss was signed by the plaintiff in this RFRA case. The
plaintiff, a FCI Florence inmate claimed to be a follower of Christian Identity,
alleged he was precluded from holding group services with other inmates. Initially,
the plaintiff maintained that the Identity services would not be open to non-white
inmates. Last week, after meeting with the AUSA and FCC Supervisory Attorney
Jenifer Grundy, the plaintiff agreed that the Identity services would be open to all
inmates. With this, the Stipulated Motion to Dismiss was signed.
CRIMINAL MATTERS
FCI Florence: USA v. Robert Carter. Inmate Carter convicted on three counts of
assault on staff (18 USC 111 (b)) for acts arising out of the October 1995
disturbance.
ADX Florence: Inmates Romero, Jackson, and Yandell indicted for assault on
inmate Saipaia at the ADX.

usp Florence: Inmate Flanagan was indicted for the December 1 994 murder of
inmate Brown.
ADMINISTRATIVE CLAIMS AND OTHER MATTERS OF INTEREST

c

Deadly Force Training
. NCRO legal staff provided wardens and FBI special agents in charge from the NCRO
with instruction on the BOP's new Firearms and Badges program statement. The
fourth amendment and Resolution 14 were also discussed. NCRO legal staff also
provided instruction to a class of WITSEC lieutenants at the MSTC concerning this
same subject matter.
Gaither V' Reno, Fifth Circuit, Case No. 95-11076, FCI Oxford/FCI Big Spring
This case has been scheduled for oral argument before the Fifth Circuit Court of
Appeals on November ~, 1996. The plainitff lost at trial and was forced to cost to
the United States.

STAFF TRAVEL AND LEAVE
John

(

I

None Scheduled

Daryl

Kalka Trial

October 16

Dan

Annual Leave
Kalka Pre-Trial
Kalka Evidentiary Hearing

October 11
October 1 5-1 6
October 28-30

Tom

Inst. Familiarization
FLETC

October 1-11
October 21-November 6

2871

5

(

Gwen

None Scheduled

James

Moore v. USA trial

October 1 6-1 7

Janice

Moore v. USA trial
Annual Leave

October 1 6-1 7
October 31, 1996

Janet

None Scheduled

Gary

NCRO Duty Officer

Claims database mailed to Mary Rose

.~agan

(
2872

October 7-14

on October 1, 1996.