*1 TITLE: United States of America, Plaintiff v. Timothy James McVeigh and Terry Lynn Nichols, Defendants.

TOPIC: MOTION FOR RELIEF FROM UNLAWFUL CONFINEMENT CONDITIONS

DOCKET-NUMBER: 96-CR-68-M

VENUE: U.S. District Court for the District of Colorado.

YEAR: Filed: September 12, 1996

JUDGE: Hon. Richard P. Matsch, Chief District Judge

ATTORNEY(S): Michael E. Tigar, Esq., Denver, Ronald G. Woods, Esq., Houston, N. Reid Neureiter Esq., Adam Thurschwell, Esq., Denver, For the Defendant Terry Lynn Nichols.

TEXT:

Terry Lynn Nichols, by counsel, moves this Court for an order: 1. directing that no prison discipline be imposed on Mr. Nichols, nor efforts to make him give testimony against himself be made, without notice to his counsel and the opportunity for a hearing before an impartial administrator and the right to have his counsel present; 2. directing that the existing unwarranted disciplinary orders issued unlawfully, vindictively, and without basis in fact be expunged, a remedy made necessary because of the risk that each unlawful order would be offered in evidence at a penalty phase of a capital trial in this case or a later case in an Oklahoma court; 3. giving such further relief as may be justified by a hearing on this motion.

FACTS [FN1]

FN1. We are prepared to offer evidence in support of every representation in this motion. See also attached eshibits. We believe the facts are not the subject of serious dispute.

1. Overview

Mr. Nichols has been a model of discretion, decorum and patience during the seventeen (17) months ofpre-trial detention he has endured. Despite this fact, his attorneys have had to intervene when federal prison officials in Oklahoma violated Supreme Court precedent by sending a psychologist to interview him without notice to his counsel, thus provoking Chief Judge Russell to issue an order; when prison officials refused to let him have contact visits with his family; and when prison officials refused him basic elements of medical care by a physician appointed by the Court. Other jail conditions have been the subject of intense negotiations--for example, to secure basic rights to assist his counsel, to have some minimal privacy, to obtain minimal rights to exercise and fresh air, and to see that he has a medically-adequate diet.

The present motion arises from a dispute over prison officials' failure to provide the diet to which Mr. Nichols is entitled and which a court-appointed private physician and medical school professor has said he must have to alleviate the serious effects on his physical health that the doctor observed.

Mr. Nichols has politely and repeatedly pointed out to prison officials that the prison regulations provide dietary items that his own physical condition requires. Under advice from his physician, Mr. Nichols invokes his rights under these regulations. Prison officials have ignored or delayed many of Mr. Nichols' legitimate requests. We are prepared to offer evidence in support of every representation in this motion. See also attached exhibits. We believe the facts are not the subject of serious dispute.

*2 For the past five months, prison officials have refused to provide the whole-wheat bread that is listed in the regulations, claiming that the bread they provide is "the same thing". Mr. Nichols requires whole wheat bread because of a medical condition which, in the past, has required surgery; recurrences of that condition may be controlled by a high fiber diet. Accordingly, within his rights as an inmate, Mr. Nichols has requested the "Common Fare" diet plan, the BOP diet plan with the most fiber and one which specifies the serving of whole wheat bread.

Mr. Nichols has repeatedly and politely discussed this situation, using appropriate prison channels. Jail Administrator C.M. Strickland himself has written: "This is an issue we have discussed numerous times before." Disposition of Inmate Request to Staff Member, 8/21/96. Mr. Nichols has also made these requests orally (for example, August 20, 21, 23 1996), and in writing (for example, Inmate Requests to Staff Member, 8/8/96, 8/12/96, 8/21/96, 8/25/96.

When prison officials told him that they would do nothing further, Mr. Nichols took the non-violent action of refusing to stand four times during counts of prisoners.

Only after counsel intervened to discuss Mr. Nichols' protest and the resulting disciplinary issues did Warden Perrill finally choose to investigate. He found that indeed Mr. Nichols was correct and that the bread supplier to the FCI has violated its contract with the prison by substituting modified for whole wheat bread. Warden Perrill informed defense counsel on Monday, September 9, at approximately 9:00 A.M. MDT, that FCI, Englewood, is demanding a refund of the supplier's overcharges for the ersatz wholewheat bread. Instead of being treated like a respected "whistleblower" who saved the government money and identified abuses by a government contractors, [FN2] Mr. Nichols has been disciplined under procedures that violate basic rights.

FN2. The False Claims Act would give Mr. Nichls a share of the recovery were he to invoke it.

2. The "Count".

"Counting" is a security procedure whereby the guards count the prisoners. There are four counts per twenty-four hour period. One is at midnight, one at 3:00 A.M., one at 5:00 A.M. and one at 4:00 P.M. The purpose of the counts are to "ensure a living, breathing person is counted." A & O Manual, Administrative Detention for Special Pretrial Inmates, "Counts". After the guards count the prisoners, they complete a count slip.

The 4:00 P.M. count is the only one where the regulations speak of the prisoner standing up by his bed and facing the counting guard. A & O Manual, Administrative Detention for Special Pretrial Inmates, "Counts". As to Mr. Nichols and Mr. McVeigh, however, the procedures have varied from the letter of the regulations. For example, if at count time they are in their respective "counsel consultation rooms" with members of the defense team, the count takes place in that room. To date, however, standing has not been enforced in counsel consultation rooms. Thus, despite the regulation, the procedure is not mandatory.

*3 Although prison regulations say that inmates are to stand for the 4:00 P.M. count, even outside the counsel consultation rooms, in Mr. Nichols' experience at FCI Englewood, the standing requirement is not observed seven days a week. And, even on days when it is observed, the requirement of facing the counting guard is often overlooked. Standing while engaged in another activity, for example, brushing his teeth and bent over a sink, has sufficed as "standing count". The count procedure shows why this is so. At count time, Mr. Nichols is ordered into his cell if not already there. He has always complied with such orders. The cell door is then locked. Mr. Nichols has always acquiesced. Then Mr. Nichols must yell "clear." Again, he has always done this part of the ritual. The next part of the routine involves the actual "count," and Mr. Nichols is usually, though not invariably, required to stand.

Logically, the standing requirement would be a helpful visual aid to guards protecting an area confining many prisoners. Mr. Nichols, however, is a special pre-trial detainee. He is incarcerated in a section that includes two separate cells with only two prisoners--Mr. Nichols and his co-defendant, Timothy James McVeigh. The likely reason that the standing "count" is not always observed is that there is no visual challenge to identifying the presence of two prisoners, each in his own cell or consultation room, the two men never in each other's presence.

It is worth noting that Mr. Nichols was never "counted" in this manner at El Reno FCI, nor ordered about in this fashion, nor required to stand when ordered by guards--all procedures more suitable to a punishment regime than to the legitimate aims of pretrial detention.

3. The four "incidents".

(a) On Wednesday, August 28, at 4 P.M., Mr. Nichols was in his cell sitting on his bunk. Lt. T. Duncan ordered him to stand for the count. Mr. Nichols refused because he wanted to protest denial of whole wheat bread with which the prison is required to provide in accordance with the BOP common fare meal plan.

Punishment: Seven days of commissary restriction, meaning Mr. Nichols would be denied access to popcorn and garlic, the only two food items he acquires from commissary; both items are for health reasons; the popcorn is his source of supplementary fiber which helps alleviate some of the problems caused by the lack of whole wheat bread. Incident Report, 430504. [Exhibit A.]

(b) On Friday, August 30, at 4 P.M., Mr. Nichols was in his cell. Lt. Stevens requested that he stand up for the count. Mr. Nichols refused to do so until her third request whereupon he stood up. In sum, Mr. Nichols stood for the count. Shortly thereafter, Lt. Ballantyne and possibly also Lt. Robertson, came by and ordered Mr. Nichols to stand for another count. Mr. Nichols told Lt. Ballantyne that he had already stood up. Lt. Ballantyne replied that the previous count had been torn up. Mr. Nichols refused to stand up for this second unnecessary and "manufactured" count. During the discussions with Mr. Nichols over this episode, Mr. Strickland arrived and directly accused Mr. Nichols of violating BOP regulations. Thus, Strickland was an accuser and witness in a proceeding where he later acted as judge. See below for discussion of disciplinary proceeding.

*4 Punishment: Seven days restriction to quarters, "no out of cell time except for recreation, shower and visits". Incident Report 430903. [Exhibit B]

(c) On Saturday, August 31, at 4:10 P.M., Pretrial Lt. D. Robertson and Lt. Ballantyne came to Mr. Nichols' cell for the count. Lt. Robertson ordered Mr. Nichols to stand for the count; Mr. Nichols neither spoke nor stood.

Punishment: Seven days restriction to his quarters, bringing his total restriction to 14 days. This second set of seven days has been suspended subject to Mr. Nichols' clear conduct for two weeks. Incident Report 431104. [Exhibit C]

(d) The fourth incident occurred September 1, 1996 at 4:00 P.M. when Lt. Ballantyne instructed Mr. Nichols to stand for the count. Mr. Nichols stated "no comment". Lt. Ballantyne ordered Mr. Nichols to stand. Mr. Nichols did not stand. There was no adjudication for this incident. The Incident Report has no prison identification number. [Exhibit D]

4. Adjudications before biased tribunal.

The prison subjected Mr. Nichols to three Unit Disciplinary Committee adjudications in two days regarding the above incidents. The Committee met in the absence of Mr. Nichols' lawyers.

The Unit Discipline Committee (UDC) has the "authority to hold initial hearings and impose minor sanctions." P.S. 5270.07, CN-05, Sept. 29, 1994, Ch. 1, p. 5, subsection b. Initial hearings before the UDC are required by s 541.15. The UDC officer is "ordinarily delegated to the staff member of the inmate's unit". The UDC officer is authorized to impose sanctions G through P which include denial of commissary "privileges". P.S. 5270.07, CN-05, Sept. 29, 1994, Ch. 1, P. 5, subsection b. [FN3]

FN3. Mr. Nichols already has far less commissary right than other pretrial detainers. The only items he can hav ein commissary are those selected by the Warden. From the outset, counsel and Mr. Nichols have had to struggle to have the commissary list expanded to include such things as popcorn and garlic.

The first UDC adjudication took place on September 3, 1996. Jon May, FCI Englewood paralegal, presided and Strickland was a witness. Tia Goodman, a paralegal on the Nichols defense team, coincidentally, was at the prison at that time for a consultation with Mr. Nichols on other matters. It was then that Mr. Nichols and his defense counsel first became aware that there was a UDC hearing regarding alleged incidents. Ms. Goodman asked Mr. May for a copy of the rules regarding disciplinary hearings. Mr. May replied that his copier was broken but he would try to get a copy for her.

Ms. Goodman requested that counsel be present at the hearing. Mr. May told Ms. Goodman that counsel is not permitted at such internal prison hearings. Further, he said that if he were to break the policy and permit Mr. Nichols to have representation at the UDC hearing, he, Mr. May, would be "strung up" for so doing.

Mr. May told Ms. Goodman that her counsel meeting with Mr. Nichols had to be cut short because of the UDC hearing. He also told her that the records show that Mr. Nichols had received and signed for the rules and regulations upon arrival at FCI, Englewood. Ms. Goodman said that as Mr. Nichols could not find these papers, would Mr. May postpone the hearing until Mr. Nichols and his counsel had an opportunity to read the rules. Mr. May denied her request for postponement despite the fact that BOP regulations provide for postponements, particularly when attempting to reach an informal resolution. 28 CFR s 541.13,1.a.

*5 By cutting short his meeting with counsel, Mr. May interfered with Mr. Nichols' defense preparations, violating his Sixth Amendment rights to preparation for his defense. By refusing a postponement until Mr. Nichols and his defense counsel gained access to the rules of the UDC proceedings, Mr. May violated the BOP preference for informal resolution of the issues and demonstrated the continuing antagonism of prison officials.

The second adjudication took place on September 4. Mr. Strickland was the only prison official presiding. Mr. Strickland read Mr. Nichols his "Baxter rights" which include the right to remain silent but that his silence could be used against him. Baxter v. Palmigiano, 425 U.S. 309 (1976). Prison officials thus obtained statements from Mr. Nichols without his counsel being present, which statements formed part of the prison record.

Regarding the second incident, Mr. Nichols pointed out to Mr. Strickland that Mr. Nichols had in fact stood for the count. However, two officers came in after the count and ordered him to stand for another count. Mr. Strickland apparently agreed. However, instead of finding Mr. Nichols not guilty as charged, he simply changed the charge from 320 ("failing to stand count") to 307 ("refusing an order") as can be seen on the Incident Report Disposition and on the top of the page where 320 is crossed out and replaced with 307 and a new charge description.written in. Mr. Strickland then promptly found him guilty of the new charge. See Exhibit B.

ANALYSIS

The four "count" incidents and the prison handling of them not only violate common sense and common courtesy, but they violate the Bureau of Prison's (BOP) own regulations.

1. The adjudications and records of the four incidents should be expunged.

These three adjudications and the record of all four incidents should all be expunged from Mr. Nichols' prison record for many reasons. First, Mr. Strickland lacked impartiality and thus his participation offends the Due Process Clause. Wolff v. McDonnell, 418 U.S. 539, 571, 94 S.Ct. 2963 (1974); Marincas v. Lewis, --- F.3d ----, 1996 WL 448124 (3d. Cir.1996), (Judge McKay, sitting by designation, identified "two of the most basic of due process protections--a neutral judge and a complete record of the proceeding"). All three hearings and their affiliated Incident Reports at which he either presided or was a member of the UDC should be expunged. Indeed, it is with Mr. Strickland that Mr. Nichols corresponded over the whole wheat bread issue, the inciting incident for the charges and it was Mr. Strickland who had denied Mr. Nichols relief. Lack of impartiality is an ingredient of due process even for convicted felons who will suffer only the relatively minor penalty of loss of good time. Wolff, supra 94 S.Ct. at 2975-82.

*6 Second, because in Incident Report 430903 [Exhibit B] Mr. Strickland found Mr. Nichols not guilty of the offense charged, and then altered the charge to the violation he believed he had committed, that Incident Report should be expunged because Mr. Nichols was deprived of fair notice. Wolff, supra, 94 S.Ct. at 2975-82; In re Ruffalo, 390 U.S. 544 (1968).

Third, as the prison denied Mr. Nichols counsel at these hearings, all three adjudications and the Incident Reports should be expunged. On September 9th, 1996, at approximately 9:00 A.M. mountain time, Warden Perrill, in a telephone conversation with Michael Tigar said that Mr. Nichols did in fact have the right to telephone his counsel at any time, even on issues related to the hearings. Mr. Nichols was never informed of this right, let alone afforded the chance to exercise it. Accordingly, all three adjudications and the incident reports should be expunged.

2. Denying Mr. Nichols counsel at the adjudications violates his due process and

sixth amendment rights. Mr. Nichols is a pretrial detainee. He is not a convicted inmate. As a pretrial detainee, Mr. Nichols has the constitutional right to be free of punishment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Whenever a "prison regulation impinges on inmate's constitutional rights", the Turner v. Say, 48 2 U.S. 78 (1987) test applies. If indeed, there is a prison regulation that denies Mr. Nichols access to counsel for an internal prison adjudication by the UDC, then the Turner test should apply. The Turner test is that the regulation must be " 'reasonably related' to legitimate penological objectives," rather than "an 'exaggerated response' to those concerns." Turner v. Saflev, 482 U.S. 78, 86 (1987) (cites omitted; upholding ban on inmate-to-inmate correspondence but striking down regulation of inmate marriages.)

Denying Mr. Nichols access to counsel violates his Sixth Amendment right to counsel. Second, denying Mr. Nichols access to counsel interferes with his protection of his prison record, a record that is critical to a capital defendant. Should Mr. Nichols be convicted and reach the penalty phase, a clear record is important for mitigation; one that is sullied can be used against him in aggravation. This is literally a life and death issue.

There is no legitimate penological purpose for denying Mr. Nichols access to counsel for the UDC hearings. The Court should order FCI Englewood to provide Mr. Nichols with access to counsel at all future proceedings, if any, and to expunge the record of these past three proceedings on the grounds that they violated his Sixth Amendment right to counsel and his Fifth Amendment right to silence.

While there may be no absolute constitutional right to counsel in prison disciplinary hearings, Wolff v. McDonnell, 418 U.S. 539 (1974), Mr. Nichols' situation is distinctly different from that in Wolff. Wolff held that counsel was not required in a prison hearing involving loss of good time, an uncertain benefit that might be restored in the future. The prisoner-plaintiffs in Wolff were convicted felons.

*7 In Wolff, the Court distinguished two parole revocation cases, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973). In Morrissey, the severe consequences of a parole revocation were held to require extensive due process protections. In Gagnon, the Court held that a person subject to parole or probation revocation was entitled to be informed of a right to counsel, and to have counsel if there was a colorable claim that the proposed revocation is inappropriate. 411 U.S. at 790, 93 S.Ct. at 1763.

From this line of Supreme Court authority, three considerations emerge. First, Mr. Nichols is a pretrial detainee, not a convicted prisoner as in Wolff. Second, the deprivation imposed involves loss of the right to an adequate prison diet. Third, and most important, the very fact of an adjudication creates an immediate risk to Mr. Nichols interests because his prison record is available to prosecutors at any penalty phase, and the adjudications violate prison policy and are arbitrary, and Mr. Nichols was compelled to give evidence against himself. It is worth noting that Mr. Nichols already endures significant restrictions on his liberty that are greater than those imposed on other pretrial detainees, ostensibly for security reasons.

Of course, there is another consideration here. The prison officials are behaving in a vindictive, arbitrary and harassing way without any justification for doing so. They apparently fail to understand that the constitution does not stop at their door.

The procedures followed here fall below even the standard set in Wolff. There, the Court declined to rule that the Adjustment Committee that conducted the adjudications was not "sufficiently impartial to satisfy the Due Process Clause." Wolff at 571. The Court described a procedure involving an initial interview with the inmate, an investigation, and then referral to a committee of three prison officials. In Mr. Nichols' case, the investigation and adjudication appear to have been one event, supervised by the same single person in the case of two adjudications (Mr. Strickland), and in one case supplemented by the presence of Mr. May. Mr. Strickland, as the facts have shown, is Mr. Nichols' chief correspondent regarding the whole wheat bread issue and he demonstrated partiality in his alteration of the charges of one incident so that he would be able to find Mr. Nichols guilty of something.

3. The prison has violated BOP policies.

(a) The prison avoided and interfered with attempts at informal resolution.

The Bureau of Prisons encourages informal resolution of conflicts with prisoners. 28 C.F.R. s 541.14,l.a. The incidents regarding the "count" are incidents which, had FCI officials brought them to the attention of defense counsel, could have been solved. The incidents were minor and should have stayed that way.

*8 Mr. Nichols' counsel, upon learning of the incidents and the adjudications consulted with the prosecution and with the Warden to achieve a resolution of the problem. [FN4] At the very least, while negotiating, Mr. Nichols' counsel hoped that Mr. Nichols, a pretrial detainee who has not been convicted of any crime, would not have to endure further punishment than his incarceration already presents. The Warden and Mr. Hartzler would not suspend Mr. Nichols' punishments even pending negotiations to expunge the record. The Warden insisted that regulations had been enforced properly, despite the fact that he now claims Mr. Nichols always has access to counsel--a claim that directly contradicts Mr. May's assertions.

FN4. Counsel for Mr. Nichols tried to resolve this issue informally. Counsel called Special Attorney to the U.S. Attorney General Joseph H. Hartzler and asked for his assistance on Thursday September 5, 1996. Negotiations continued through Friday, September 6. Mr. Tigar also spoke with Warden Perrill on Monday, September 9.

Further, the prison had the opportunity to postpone the hearing pending informal resolution--even if only to allow Mr. Nichols' counsel to research his rights to counsel in prison adjudication setting. Indeed, Ms. Goodman requested such a postponement. However, on September 3, 1996, Mr. May not only refused a postponement, but cut short a defense counsel meeting to hold the adjudication. Mr. May's actions, even if within his discretion, manifest his lack of good faith in informal resolution of the proceedings.

Proof of these assertions is easy to find. On the first incident report (Exhibit A), Mr. Nichols stated that he had no problem with the count, only with the bread issue. The Warden had repeatedly refused to do anything about the bread issue, and it was only the furor over these disciplinary episodes that provoked the action recounted above--the prison has been done wrong by its supplier. Had prison officials behaved responsibly at the outset, the situation would have remained "normal." Indeed, Mr. Nichols had resolved to stand for the count on Monday, September 2, before the first disciplinary hearing was held. But there was no count held that day, further showing the arbitrary nature of the prison's conduct.

(b) Denial of commissary privileges was retaliatory.

Restricting Mr. Nichol's commissary privileges deprived him of the dietary supplement which helps alleviate the medical disorder that has in the past been resolved by surgery and which is caused by a lack of dietary fiber. The prison guards are well aware of Mr. Nichols' dietary concerns and selected a punishment that exacerbates the medical condition that underlies the dispute over the whole wheat bread. The guards were fully aware of Mr. Nichols' dependence upon popcorn as a source of fiber, a food stuff only available to him through the commissary--a commissary already restricted as noted above. The prison's choice of this punishment violates BOP rules in that it is "retaliatory":

*9 Disciplinary action may not. be capricious or retaliatory. BOP Regulations s 541.1 Ob(4).

(c) The sanction of loss of a privilege, in this case, access to commissary, violated BOP regulations [FN5]

FN5. Commissary access is defined as a "right" and a not a "privilege" according to Inmate Rights and Responsibilities: "You have the right to use your funds for commissary and other purchases, consistent with institutional security and good order ..." 28 C.F.R. s 541.12.

"Ordinarily, loss of privileges is used as a sanction in response to an abuse of that privilege. However, the ... UDC may impose a loss of privilege sanction not directly related to the offense when there is a lack of other appropriate sanctions or when imposition of an appropriate sanction previously has been ineffective." P.S. 5270.07, October 12, 1988, Ch. 4, P. 13, CN-I, Table 4--Sanctions, G.

First, there are other appropriate sanctions available for the UDC to impose for refusal to stand count or refusal to obey an order. Refusal to stand count and refusal to obey an order are classified as Moderate Category prohibited acts. As such restriction to quarters (Sanction, M) is an alternative punishment the UDC is authorized to impose and which it did impose for the two subsequent count failures.

Second, the UDC did not find restriction to quarters an ineffective penalty-- and could not have, as denial of commissary privilege was the first sanction the UDC selected. In fact, the UDC selected it for the two subsequent penalties. There is no viable argument that loss of commissary privilege should have been imposed for the first, or any other count violation.

Third, denial of access to foodstuffs with fiber is not related to standing up for a count. Rather, selection of that sanction is clearly related to the inciting issue of lack of whole wheat bread and therefore is retaliatory. Because this sanction exacerbates Mr. Nichols' medical problem and was improperly imposed even had it not involved a hotbutton issue (access to a fiber food, popcorn) the imposition of denial of commissary privileges constitutes harassment and retaliation.

(d) Depriving Mr. Nichols of whole wheat bread violates his Inmate Right # 4: "You have the right to health care, which includes nutritious meals ..." Inmate Rights and Responsibility s 541.12.

Mr. Nichols is not complaining about the lack of gourmet food; rather, he complains that the prison is not serving the meals its own regulations require. The prison itself confirms that Mr. Nichols was correct regarding the whole wheat bread. Warden Perrill is in fact requesting refunds for the overcharges for the substituted inferior wheat bread. Telephone conversation between Mr. Tigar and Warden Perrill, September 9, 1996, approximately 9:00 A.M., mountain time On Monday morning, September 9, 1996, Warden Perrill did visit with Mr. Nichols in his cell and explain that the prison was trying to solve the whole wheat bread problem and might be able to do so October I with the start of the new fiscal year.

(e) FCI, Englewood violated Inmate Right # 2 when it failed to provide Mr. Nichols or his attorneys with information regarding the UDC hearing before the hearings.

*10 You have the right to be informed of the rules, procedures, and schedules concerning the operation of the institution. Inmate Rights and Responsibility s 541.1.

4. The incidents and adjudications can and should be expunged, per BOP policy.

BOP Regulations provide several routes to expungement of records of incidents. First, expungement is mandatory should informal resolution occur. 28 C.F.R. s 541.14,1.a., P.S. 5270.07, December 29, 1987, Chapter 5, Page 1.

Second, expungement may occur at several stages of the proceedings: The writer of the incident report may resolve the issue informally and drop the charges; after forwarding the incident report to the Lieutenant, the Lieutenant may resolve the issue informally or drop the charges; the UDC may drop or resolve informally any Moderate charge. [FN6] "Summary of Disciplinary System", Table 1, Chapter 2, Page 2, P.S. 5270.7, December 29, 1987. Further, "[s]taff may suspend disciplinary proceedings for a period not to exceed two calendar weeks while informal resolution is undertaken and accomplished." "Time Limits in Disciplinary Process", Note, Chapter 2, Page 3, P.S. 5270.7, December 29, 1987.

FN6. Both charges were in the "moderate cateogry".

Technically, as the standing for count issue has been resolved (Mr. Nichols has agreed to stand and has done so since the fourth incident on September 1) and the whole wheat bread issue has been resolved (Mr. Nichols was correct about the improper bread and the prison is arranging for refunds from the supplier), informal resolution of the incidents has occurred. Therefore, per BOP regulations, the records of the incidents must be expunged.

5. Mr. Nichols has exhausted all of his non-futile and proper administrative remedies.

The adjudications by the UDC indicate that the prison has informed Mr. Nichols of his right to appeal within 15 days. Mr. Nichols, accordingly, has requested the form to request the appeal and will request an appeal. However, counsel believes that the formality of the appeal is futile and the legal issues remaining are not those within the auspices of the doctrine of exhaustion of administrative remedies.

First, counsel has repeatedly negotiated and spoken with the prosecution and with prison officials. Indeed, Warden Perrill has informed us that he has reviewed the matter and that the decisions made were correct and per the regulations.

Second, the doctrine of exhaustion of administrative remedies yields when a legal issue not within agency expertise is presented, and where the resort to the administrative process is futile. The history of Mr. Nichols and his counsel's dealing with prison issues demonstrates that once the Warden has decided an issue, and the prosecutors and defense counsel have tried to work things out, there is only exhaustion and no remedy in letting the bureaucrats keep the matter. See generally McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657 (1969)(no need for Selective Service registrant to exhaust purely legal claim with constitutional overtones); Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592 (1988)(exhaustion under Education of Handicapped Act excused under certain circumstances); Mountain States Natural Gas Corp. v. Petroleum Corp. of Texas, 693 F.2d 1015 (10th Cir.1982)(exhaustion excused when remedy inadequate and "the federal questions are ... plain"); Peabody Galion v. A.V. Dollar, 666 F.2d 1309 (10th Cir.1981)(in analogous area of labor-management, exhaustion excused when statutory right involved or remedy futile).

CONCLUSION

*11 For the foregoing reasons, it is respectfully prayed that the requested relief be granted.

Respectfully submitted,
__________________________
Michael E. Tigar
150 East Tenth
Denver, CO 80203

Ronald G. Woods
5300 Memorial, Suite 1000
Houston, TX 77007

Adam Thurschwell
N. Reid Neureiter
Jane B. Tigar
1120 Lincoln, Suite 1308
Denver, CO 80203

(303) 831-4059
Fax (303) 831-6232

Counsel for Terry Lynn Nichols
(Appointed by the Court)

EXHIBIT A

NOTE: The Incident Report dated 9/1/96 is illegible. A copy of the document are available from the court.

Incident Report

1. NAME OF INSTITUTION: F.G.I. ENGLEWOOD

PART I - INCIDENT REPORT

2. NAME OF INMATE:           3. REGISTER          4. DATE OF           5. TIME:

NUMBER:              INCIDENT:

NICHOLS, TERRY              08157 - 031          8-28-1996            4:00pm

6. PLACE OF INCIDENT:       7. ASSIGNMENT:       8. UNIT

PRETRIAL C-1                N/A                  PRETRIAL UNIT

9. INCIDENT:                                                          10. CODE

FAILING TO STAND FOR COUNT                                            320

11. DESCRIPTION OF INCIDENT (Date: 8-28-96 Time: 4:00pm Staff became aware of incident)

On the above date, during the 4:00pm stand up count, inmate Nichols #08157- 031 was sitting on his bunk. I instructed inmate Nichols to stand for the count. Inmate Nichols stated "I have a beef with the B.O.P., and I didn't have to at El Reno". I then gave inmate Nichols a direct order to stand for count. Inmate Nichols replied "no".

12. SIGNATURE OF REPORTING      DATE AND  13. NAME AND TITLE

EMPLOYEE                        TIME      (Printed)

/s/ T. Duncan                   8-28-96   T.Duncan, Lieutenant

4:30pm

14. INCIDENT REPORT DELIVERED             15. DATE INCIDENT REPORT  16. TIME

TO ABOVE INMATE BY                        DELIVERED                 INCIDENT

REPORT

DELIVERED

/s/                                       8/29/96                   2:50pm

PART II - COMMITTEE ACTION

17. COMMENTS OF INMATE TO COMMITTEE REGARDING ABOVE INCIDENT

I never had to stand for count at El Reno. It should have been explained better here as well. There are a number of counts for which I didn't stand and why is that? I admit I didn't stand for count. I still have a "beef" with the B.O.P. about the whole wheat bread. I thought this might get the attention I need to resolve it.

18. A. IT IS THE FINDING OF THE COMMITTEE THAT YOU:

X COMMITTED THE FOLLOWING PROHIBITED ACT. 320

DID NOT COMMIT A PROHIBITED ACT.

B. THE COMMITTEE IS REFERRING THE CHARGES TO THE DHO FOR FURTHER HEARING.

C. X THE COMMITTEE ADVISED THE INMATE OF ITS FINDINGS AND OF THE RIGHT TO FILE AN APPEAL WITHIN 15 CALENDAR DAYS.

19. COMMITTEE DECISION IS BASED ON THE FOLLOWING INFORMATION

The eyewitness account of the reporting officer and inmate's own admission he failed to stand for count.

20. COMMITTEE ACTION AND /OR RECOMMENDATION IF REFERRED TO DHO (CONTINGENT UPON DHO FINDING INMATE COMMITTED PROHIBITED ACT).

7 days commissary restriction

21. DATE AND TIME OF ACTION 9-3-96 3:40 pm, THE UDC CHAIRMAN'S SIGNATURE NEXT TO HIS NAME CERTIFIES WHO SAT ON THE UDC AND THAT THE COMPLETED REPORT ACCURATELY REFLECTS THE UDC PROCEEDINGS.)

/s/ CMSTRICKLAND /s/

EXHIBIT B

Incident Report

1. NAME OF INSTITUTION: F.G.I. ENGLEWOOD

PART I - INCIDENT REPORT

2. NAME OF INMATE:                     3. REGISTER       4. DATE OF     5.

NUMBER:           INCIDENT:      TIME:

NICHOLS, TERRY                        08157 - 031       8-30-1996      4:00pm

6. PLACE OF INCIDENT:                 7. ASSIGNMENT:    8. UNIT

PRETRIAL C-?? CELL#1                  UNASSIGNED        PRETRIAL

9. INCIDENT:                                                           10. CODE

FAILING TO STAND FOR COUNT, REFUSING                                   307

AN ORDER

11. DESCRIPTION OF INCIDENT (Date: 8-30-96 Time: 4:00pm Staff became aware of incident)

During 4:00pm stand up count, Nichols #08157-031 refused a direct order to stand up for the 4:00pm count.

12. SIGNATURE OF REPORTING      DATE     13. NAME AND TITLE

EMPLOYEE                        AND      (Printed)

TIME

/s/ ?. Ballantyne               8-30-96  ?.Ballantyne, Lieutenant

4:31-

pm

14. INCIDENT REPORT DELIVERED            15. DATE INCIDENT REPORT   16. TIME

TO ABOVE INMATE BY                       DELIVERED                  INCIDENT

REPORT

DELIVERED

/s/                                      8/30/96                    5:09pm

PART II - COMMITTEE ACTION

17. COMMENTS OF INMATE TO COMMITTEE REGARDING ABOVE INCIDENT

I stood up for the "first" 4:00pm count with Lt. Stevens. She asked me 3 times to stand up and I finally stood up. Lt. Ballantyne and Lt. Robertson (I think) came by shortly after that and said they were doing the 4:00pm count. I did not stand up for them when they ordered me to stand. How many counts do I have to go through? How do I know what the officers are supposed to do?

18. A. IT IS THE FINDING OF THE COMMITTEE THAT YOU:

X COMMITTED THE FOLLOWING PROHIBITED ACT. 307

REFUSING AN ORDER

DID NOT COMMIT A PROHIBITED ACT.

B. THE COMMITTEE IS REFERRING THE CHARGES TO THE DHO FOR FURTHER HEARING.

C. X THE COMMITTEE ADVISED THE INMATE OF ITS FINDINGS AND OF THE RIGHT TO FILE AN APPEAL WITHIN 15 CALENDAR DAYS.

19. COMMITTEE DECISION IS BASED ON THE FOLLOWING INFORMATION

The eyewitness account of the reporting officer and inmate's own admission he refused the order to stand up for count. Even if confused about who actually was counting, he refused Lt. Ballantyne's direct order to stand.

20. COMMITTEE ACTION AND /OR RECOMMENDATION IF REFERRED TO DHO (CONTINGENT UPON DHO FINDING INMATE COMMITTED PROHIBITED ACT).

Restrict to quarters for 7 days - i.e. no out of cell time except for recreation, shower and visits.

21. DATE AND TIME OF ACTION 9-4-96 1:40 pm, THE UDC CHAIRMAN'S SIGNATURE NEXT TO HIS NAME CERTIFIES WHO SAT ON THE UDC AND THAT THE COMPLETED REPORT ACCURATELY REFLECTS THE UDC PROCEEDINGS.)

/s/ CMSTRICKLAND /s/

EXHIBIT C

Incident Report

1. NAME OF INSTITUTION: F.G.I. ENGLEWOOD

PART I - INCIDENT REPORT

2. NAME OF INMATE:                     3. REGISTER      4. DATE OF      5.

NUMBER:          INCIDENT:       TIME:

NICHOLS, TERRY                        08157 - 031      8-31-1996       4:10pm

6. PLACE OF INCIDENT:                 7. ASSIGNMENT:   8. UNIT

PRETRIAL UNIT CELL C-1                UNASSIGNED       PRETRIAL UNIT

9. INCIDENT:                                                           10. CODE

REFUSING TO OBEY AN ORDER OF ANY                                       307

STAFF MEMBER

11. DESCRIPTION OF INCIDENT (Date: 8-31-96 Time: 4:10pm Staff became aware of incident)

On the above date and time Lt. Ballantyne and I were conducting count when we came to cell C-1. Inmate Nichols was sitting on his bunk. I told Nichols to stand for count. Nichols said no comment. I told Nichols, I'm giving you an order to stand for count. Nichols did not say anything nor stand for count. Lt. Ballantyne and I continued the count.

12. SIGNATURE OF REPORTING     DATE     13. NAME AND TITLE

EMPLOYEE                       AND      (Printed)

TIME

/s/ Doug Robertson             8-31-96  D. Robertson, Pretrial

4:46-    Lieutenant

pm

14. INCIDENT REPORT DELIVERED           15. DATE INCIDENT REPORT    16. TIME

TO ABOVE INMATE BY                      DELIVERED                   INCIDENT

REPORT

DELIVERED

/s/                                     8/30/96                     9:52pm

PART II - COMMITTEE ACTION

17. COMMENTS OF INMATE TO COMMITTEE REGARDING ABOVE INCIDENT

Inmate Nichols refused to make any comment at all.

18. A. IT IS THE FINDING OF THE COMMITTEE THAT YOU:

X COMMITTED THE FOLLOWING PROHIBITED ACT. 307

DID NOT COMMIT A PROHIBITED ACT.

B. THE COMMITTEE IS REFERRING THE CHARGES TO THE DHO FOR FURTHER HEARING.

C. X THE COMMITTEE ADVISED THE INMATE OF ITS FINDINGS AND OF THE RIGHT TO FILE AN APPEAL WITHIN 15 CALENDAR DAYS.

19. COMMITTEE DECISION IS BASED ON THE FOLLOWING INFORMATION

The eyewitness account of the reporting officer which indicates inmate Nichols refused to stand for count even when given a direct order and inmate Nichols refusal to offer any defense and/or justification.

20. COMMITTEE ACTION AND /OR RECOMMENDATION IF REFERRED TO DHO (CONTINGENT UPON DHO FINDING INMATE COMMITTED PROHIBITED ACT).

Restrict to quarters for 7 days, consecutive to earlier sanction - SUSPENDED FOR 14 days pending clear conduct.

21. DATE AND TIME OF ACTION 9-4-96 1:48 pm, THE UDC CHAIRMAN'S SIGNATURE NEXT TO HIS NAME CERTIFIES WHO SAT ON THE UDC AND THAT THE COMPLETED REPORT ACCURATELY REFLECTS THE UDC PROCEEDINGS.)

/s/ CMSTRICKLAND /s/

U.S. v. McVeigh and Nichols