Fbop Ncr Monthly Reports 1999nov-dec

• Topics: Court Access, BOP Litigation Reports

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U.S.Depa~entofJustice

Federal Bureau of Prisons
North Central Regional Office

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

66101-2421

December 14, 1999

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

JOHN R. SHAW, Regional Counsel

SUBJECT:

Monthly Report (November 1999)

(
LmGATION. CLAIMS. AND ADMINISTRATIVE REMEDY STATISTICS

LITIGATION:

INST

NUM

FTC

BIV

OTH

ANS

PEN

CLD

SET

AWD

423

NCR

Total eases for Calendar Year - 546
NUMHCFfCBIVOTHANSPEN-

(

Number or total lawsuits filed iD the month
Number or habeas corpus actioDs filed in the reportiDg period
Number or FfCA actions filed
Number or Bivens actions filed
Number or otber actions filed, e.g., meDtal health, mandamus
Number ollillaalion reports completed
Number 01 cases peadlnl
CLD- Number 01 cases closed
HIr- Number or he.riDls or trials (iDclude iD Darrative)
SET· Number or settlements (Include in narrative)
AWD- Number or Awards (include in Darrative)

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• Nonh Central Region
Regional Counsel Monthly Report
November 1999
Page 2

AI)MINISTRATIVE CLAIMS

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV DEC

107

Total for Calendar Year - 857
Pending 311

Tort dBASE Files sent via e-mail to OGC, on 12/3/99
ADMINISTRATIVE REMEDIES
JAN

FEB

MAR APR

MAY JUN

JUL

AUG

SEP

OCT

NOV

188

208

228

207

192

187

167

193

187

215

230

Total for Calendar Year -2202

FREEDOM OF INFORMATION ACTIPRIVACY ACI' REQUESTS

PRIVACY
ACT

FOIA

ACTIJAL ON-HAND

ACTUAL RECEIVED

ACTUAL PROCESSED

ACTUAL BACKLOG

Total for Calendar Year - 725
*_1 Requests awaiting the retrieval of records from the archives.

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• North Central Region
Regional Counsel Monthly Report
November 1999
Page 3

ADVERSE DECISIONS
Cuoco v. USA. et al., Case Number 98-D-1182, FCI Florence
On November 15, 1999, Judge Daniel concluded defendant Lopez was not entitled to qualified
immunity and there existed genuine issues of material fact for trial. The case involves allegations
of excessive force.
SETTLEMENTS OR .nJDGMENTS

None.
DECISIONS OF INTEREST
Anunta v. Helman, Case No. 99-1337, FCI Pekin, 7tJj Circuit
Inmate filed appeal of district court decision denying his petition for habeas relief. Focus of appeal
was the destruction of a videotape which showed the petitioner engaging in a sex act in the visiting
room. Decision of the District Court affirmed.

Jones v. Simek, Case No. 193 F.3d 485, MCC Chicago, 7tJj Circuit
Inmate filed civil rights suit, alleging that defendants had subjected him to excessive force and
refused to give him medical treatment, in violation ofEightb Amendment's prohibition against cruel
and unusual punishment. The United States District Court for the Northern District of Illinois,
Charles P. Kocoras, J., 1996 WL 67976, dismissed medical care claim, and found for defendants
on excessive force claim. Inmate appealed. The Court of Appeals, Diane P. Wood, Circuit Judge,
held that: (1) complaint did not state medical care claim against corrections officer; (2) fact questions
precluded summary judgment on medical care claim against prison physician; and (3) district court
did not abuse its discretion in denying plaintiffs motions for continuance and voluntary dismissal.
Affinned in part, and reversed and remanded in part.
PENDING CASES OF INTEREST
Aleatha Shaw v. Alban Jervier and Terrance Wells, Case No. 99-CV-5139, MCC Chicago
Female inmate alleges a staffmember sexually assaulted her while she was a pretrial detainee. Grand
Jury investigation is pending, and letter was sent from Warden to U.S. Attorney to request for
expedited proceedings. Staff members have requested representation and have been advised of the
potential conflicts. Due to improper service on the staff members, the answer date has not been set.
The United States Attorney's Office has requested that no litigation report be sent until the
representation issue has been settled.

Turner v. Schultz. et al., Case No. 99-WM-2232, USP Florence
Staff received certified mail packets from law firm of Baroway & Dawson, who represent inmate
Turner in this Bivens action. Turner asserts that the defendants assaulted him at USP Florence in
August 1996, falsified documents concerning the incident, conspired to frame him for assault and

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Regional Counsel Monthly Repon
November 1999
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wrongfully took disciplinary action against him. Turner seeks $25 million from the defendants in
various amounts for their actions and failure to train or supervise subordinates.

Cordero v. UNICOR. et al., Case No. 99-K-1447, USP Florence
Bivens action against several current and former BOP staff in which inmate alleges he was assaulted
by another inmate with a screwdriver. He claims the defendants knowingly allowed the screwdriver
to be removed from UNICOR. Plaintiff seeks $15 million from each defendant in compensatory,
punitive, declaratory, consequential and actual and future damages. Inmate is being "represented"
by another inmate and included in the representation agreement is a contingency fee.
Richard D. Kunkle v. J. W. Booker, et al., Case No 99-3352-RDR, USP Leavenworth
In this petition for writ of habeas corpus, Kunkle requests the findings of the DHO be expunged
in connection with his failure to provide a urine sample and that the sanctions imposed also be
expunged. In addition, petitioner requests release to a halfway house based upon a one-year reduction
under 18 U.S.C. section 3621(e).
Harding v. Wino, Case No 99-1367, FCI Pekin
Habeas action requesting a nunc pro tunc designation to the state of Georgia. After initial review,
there appears to be some merit to the petitioner's claim that his federal sentence was to run
concurrent to his state sentence. The prosecuting U.S. Attorney's Office is being consulted for
further clarification. Granting request will result in an immediate release for the petitioner.
Neftali Dejesus v. J. T. O'Brien, el al., Case No. 99-C-308-S, FCI Oxford
Plaintiff was assaulted by an inmate on March 30, 1999, and alleges that FCI Oxford failed to
maintain a safe environment free, from violence; that the BOP should have known that the
perpetrator represented a danger to others in the general population at FCI Oxford; and that FCI
Oxford failed to provide swift and sufficient medical care. A motion for judgment on the pleadings
was filed on November 8,1999.
Germain Gonzalez v. J. T. O'Brien, Case No. 99-C-147, FCI Oxford
Plaintiff alleges that the respondent violated his right to procedural due process by refusing to allow
his wife to visit without first conducting a hearing into the matter. Judge Crabb has interpreted the
denial as an outright ban on family visitation and that represents a significant and
.
Crabb also believes that the petitioner has received no due process.

(

Okai v. USA, Case No. 9~37, FCI Greenville
Okai brought this FTCA action alleging: failure to properly train, supervise, and control the use of
force and chemical agents; the denial of access to adequate medical care; failure to properly train,
supervise, and control the illegal denial of access to court and intrusion of privacy; illegal denial of

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Regional Counsel Monthly Report
November 1999

PageS

access to court; and illegal intrusion of privacy. These allegations stem from the October 1995
disturbance. Okai previously lost a jury trial in which he sued several correctional officers for
alleged Eighth Amendment violations stemming from a majority of the same incidents.
HEARINGS AND TRIALS
Cuoco v. USA, et al., Case No. 98-D-1182, FCI Florence
A telephonic hearing was held on November 15, 1999, regarding defendant Lopez's Motion to
Dismiss. Judge Daniel entered an adverse decision against defendant Lopez on the constitutional
claims but granted the government's motion to substitute the USA for defendant Lopez on the
FTCA claims. Inmate C~oco sought and obtained leave of court to further amend his complaint to
include additional allegations against defendant Lopez.
Wilson v. Moore. No. 96-591, FCI Greenville
A bench trial was held on November 30, 1999, in Benton, Illinois, in this Bivens case. The inmate
alleged excessive use of force when a bus of inmates was gassed following the disturbance in
October 1995. Magistrate Frazier presided over the trial in which Wilson was the only witness for
his case. The primary arguments presented by the defense were that the use of the chemical agent
was justified under the circumstances, that it was the least amount of force necessary to calm the
situation, and that plaintiff did not suffer any lasting effects of the chemical agent or the alleged
beating that he received. No decision has been rendered by the Magistrate.
CRIMINAL MATIERS
United States v. David Michael Sahakian, No. 99-40044-JPG; United States v. Joseph L.
Tokash, No. 99-4004S-JPG; United States v. Rodney Allen Dent, No. 9940046-JPG; United
States v. Scott Lee Martin, 99-40048-JPG; United States v. Mitchell E. Kolb, No. 99-40047·
JPG; United States v. John Derel Usber, No. 99-40049-JPG, USP Marion
The above-named inmates are charged with possession of a prohibited object in violation of 18
U.S.C. § 1791(a)(2). A trial date has not been set.
U.S.A v. Bellwood. Hall. Marston, Nicolace, and Johnson, Case No. 99-30181, FCI Greenville
Bellwood, a former BOP employee, pled guilty to conspiracy and possession with intent to distribute.
Inmates Hall, Marston, and Nicolace pled guiltY to conspiracy. Johnson also pled guilty to
conspiracy and possession. None of ~e defendants have yet been sentenced
U.S.A. v. Tony Calhoun, FCI Oxford
Inmate charged with assault with a deadly weapon. He was indicted on September 16, 1999. Trial
has been scheduled for January 3,2000

U.S.A v. Francis and Haney, USP Florence
Pre-trial hearing held on November 19, 1999, in this attempted escape case. Court denied Haney's
motion to use dmess as a defense. Trial date set for April 17, 2000.

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U.S.A. v. Mark Bogan, FCI Oxford
Inmate charged with assault with a deadly weapon and assault with the intent to commit murder. He
was indicted on September 16,1999. Trial has been scheduled for January 3, 2000.
U.S.A. v. Scott Alex Scholler and Damion Johnson, USP Leavenworth
A trial date of February 8, 2000 has been set for the prosecution of inmates Scott Alex Shofler and
Damion Johnson for the murder of inmate Smothers. The trial is expected to last 2 weeks.
PERSONNEL ISSUES

STAFF TRAVEL AND LEAVE
12/20-12/30

12123-12/27

12/12-12/17

OLE Columbia, SC

12/27-12/30

1213-12/9
12/27-12/28

Washington, D.C.
AL

12123-12/30

12/22-12/23

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"

3587

'012

u.s. DepanrnentofJustice
Federal Bureau of Prisons
North Central Regional Office

Tower 1/, 8th Floor
400 State Street

Kansas City, KS

66101-2421

January 10, 2000

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

JOHN R. SHAW, Regional Counsel

SUBJECT:

Monthly Report (December 1999)

(
LITIGATION, CLAIMS, AND ADMINISTRATIVE REMEDY STATISTICS

LITIGATION:

INST

NUM

FTC

BIV

OTH

ANS

PEN

CLD

Hff

SET

AWD

NCR

440

0.00

Total cases for Calendar Year - 580

(

NUM HC FTC BIV OTH ANS PEN CLD Hff SET AWD -

Number of total lawsuits filed in tbe montb
Number of babeas corpus actions filed in tbe reporting period
Number of FfCA actions filed
Number of Bivens actions filed
Number of otber actions filed, e.g., mental bealtb, mandamus
Number of litigation reports completed
Number of eases pending
Number of cases closed
Number of hearings or trials (include in narrative)
Number ofseUlements (include in narrative)
Number of Awards (include in narrative)

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· North Central Region
Regional Counsel Monthly Report
December 1999
Page 2

ADMINISTRATIVE CLAIMS

JAN

FEB

MAR APR

MAY JUN

JUL

AUG

SEP

OCT

NOV

DEC

107

Total for Calendar Year - 908
PendiDg302

Tort dBASE Files sent via e-mail to OOC, on 1/5/00
ADMINISTRATIVE REMEDIES

(

JAN

FEB

MAR

APR

MAY JUN

ruL

AUG

SEP

OCT

NOV

DEC

188

208

228

215

207

192

187

167

193

187

189

230

Total for Calendar Year -2391

FREEDOM OF INFORMATION ACTIPRIVACY ACT REQUESTS

PAIFOIA

FOIA

ACTUAL ON-HAND

ACTUAL RECEIVED

ACTUAL PROCESSED

ACTIJAL BACKLOG

7·

2·

Total for Calendar Year - 750
*_1 Requests awaiting the retrieval of records from the archives.

*.L Requests received 10-14 days after date received in Central Office.

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• North Central Region
Regional Counsel Monthly Report
December 1999
Page 3

ADVERSE DECISIONS
Holloway v. J. W. Booker. Jr., Case No. 99-3322-RDR, USP Leavenworth
On December 2, 1999, the District Court Judge ruled against the agency in the above-referenced
Section 2241 petition. Petitioner sought a one year sentence reduction in his sentence pursuant to
18 U.S.C. Section 3621(e) after his successful completion of the residential phase of the RDAP
program. In connection with his sentence, Holloway received a 2 level enhancement for possession
of a weapon in connection with a drug offense.
Anderson v. Herrera. Case No. 99-D-1523, FCI Florence
Petitioner received a 2-point enhancement for possession of a fireann. Eligibility for early release
was denied under director's discretion. On December 13, 1999, the District Court Judge granted
petition, directing BOP to consider petitioner eligible for early release.

SETTLEMENTS OR JUDGMENTS
None.

DECISIONS OF INTEREST
Stewart v. Seiter, et al, Case No. 96-983, FCI Greenville
On November 22, 1999, this distur~ce related case was dismissed for Stewart's failure to comply
with a discovery order.
Bacon v. Seiter & Moore, Case No. 97-038; Larkin v. Galloway & Bowlinl, Case No. 96-607;
and Johnson v. Nelson, et al•• Case No. 96-396, FCI Greenville
On December 7, 1999, the District Judge rejected the Report and Recommendations from Magistrate
Judge Frazier in the above referenced cases which had denied a motion to dismiss for failure to
exhaust administrative remedies. The Judge found that the so-called "exception" to the exhaustion
requirement found in Perez is dicta and is not binding. The cases were dismissed and judgments
entered in favor of defendants: Seiter and Moore in Bacon: Galloway, and Bowling in Larkin; and
Nelson, Bowen, Zachary, and Zucksworth in Johnson.
Wartman v. United States, Case No. 98-395-WDS, USP Marion
An Order was issued on December 1, 1999, adopting the R & R where defendant's motion to dismiss
was granted because of lack of jurisdiction due to the discretionary function exception. Plaintiff
alleged that he was assaulted by a known white racist inmate when released from his cell for
breakfast on February 28, 1997. He states he received five stab wounds which caused loss ofhearing
in his right ear, loss of range of motion in his neck; and a pronounced limp. Plaintiff asserts that
staff knew of a race war between the "D. C. Blacks and white racist prisoners" but he was not
warned or offered protection. Plaintiff claims prison staff should have known that he was in danger
and should not have released him from his cell. He sought $1,100,000 in damages.

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Burk v. Moorhead, et al., Case No. 98-3030-MLB, USP Leavenworth
On December 13, 1999, the Court granted the government's motion for summary judgment
in this Bivens-styled action wherein Burk alleged his constitutional rights were violated
when he was placed in the Special Housing Unit. Specifically, Burl< argued that he was
placed in SHU even though defendants knew he was not guilty of violating any prison rules.
Plaintiff argued this arbitrary action denied him due process, that his strip search violated
his Fourth Amendment rights. and that the conditions he suffered for three days violated
his Eighth Amendment right to be free from cruel and unusual punishment. In reaching its
decision, the court concluded that the Fifth Amendment Due Process clause was not
implicated because plaintiff was given three meals a day, the opportunity to exercise, and
the opportunity to be seen by the prison's medical staff. The court also found that the
prison had a legitimate penological interest in searching the plaintiff's person prior to being
placed in SHU. Finally, the court determined the plaintiff failed to demonstrate that the
specific defendants were deliberately indifferent to his lack of a blanket, pants or personal
hygiene items.
McAlister v. Pugh, Case No. 98-N-1425, FCI Florence
On December 13. 1999. the District Judge adopted the Report and Recommendation
issued by the Magistrate Judge on October 15, 1999, and dismissed the petition. The case
involved a challenge to 3621(e) early release denial for inmate convicted under 922(g) ..
The Court rejected petitioner's argument that the adoption of the new regulation wa'l
defective under the APA. Furthermore, the Court also rejected petitioner's argument
concerning Program Statement 5162.02. finding that the decision to exclude him from
consideration was based on an appropriate exercise of discretion by the Director, not upon
a determination that 922(g) is a "crime of violence.· The Court held that the decision to
adopt a generalized standard in exercising discretion in this area is not arbitrary or
capriciOUS, nor is the agency determination that inmates convicted of both drug and firearm
offenses pose a greater risk to society than those convicted solely of drug offenses
irrational.
PENDING CASES OF INTEREST
Johnson v. United States, Case No. 96-CV-5708, MCC Chicago
FTCA action filed by the family seeking damages in suicide death of pre-trial inmate. The
complaint alleges that the United States was negligent in allowing the suicide to occur and
seeks compensation for pain and suffering of deceased prior to his suicide. The family
also seeks compensation for estate expenses. Trial is scheduled for February 22, 2000.

Bracciodieta v. USA, Case No. 99-M-1997, USP Florence
Petitioner originally filed habeas/Bivens in District of New Jersey, concerning application
of good time credits, specific psychiatric care, transfer to a medical center as
recommended by the sentencing judge and damages for failing to provide the mental

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• North Central Region
Regional Counsel Monthly Report
December 1999
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health services. Originally, the case was transferred to the District of Kansas when
petitioner was housed at Leavenworth. The District Judge dismissed all claims expect that
concerning good time credits and transferred petition to District of Colorado as petitioner
had been transferred to USP Florence. Petitioner seeks good time credit for a 12 month
supervised release violation term.

Cuoco v. Hurley. Hershberger. Roal. and Hawk. Case No. 98-0-2438. AOX Florence
Plaintiff challenges rejection of several publications and Bureau's implementation of the
Zimmer Amendment.

pride v. Herrera. Case No. 99-WM-0255. FCI Florence
An Order to Show Cause indicates that petitioner is not to be transferred from their
jurisdiction during pendency of petition. Petitioner filed a "Motion to Transfer" seeking to
be released from the "geographic hold" imposed by the Court, so that he can be
transferred to Pekin. BOP responded as directed by the Court, arguing that the BOP does
not disagree with removing the geographic hold on petitioner but objects to any order that
would direct placement of petitioner in a specific facility or direct a transfer.

Mathison v. USA. Case No. 99-1897. FCI Sandstone
Plaintiff filed this FTCA suit alleging that he broke a tooth when he bit into a turkey leg that
was served to him, and that the injury was not properly treated by prison dental staff.

RELIGIOUS FREEDOM RESlORAliON ACT CASES

\ ...

Kikumura v. Hurley and Gallegos. Case No. 10th eire 98-1284. (98-B-1442), ADX
Florence
Plaintiff challenges defendants' denial of "pastoral" visits under RFRA. Visits did not
comply with BOP policy on religious visits. Plaintiff filed motion for TRO/PI to preclude
denial of future pastoral visits. The Magistrate Judge recommended denial of the
application. as plaintiff did not have a substantial likelihood of success on the merits. He
also noted that RFRA was no longer a basis of jurisdiction, having been declared
unconstitutional by the Supreme Court. This R&R was adopted by the District Court
without change. Plaintiff appealed denial of his motion for TRO/PI to the 10th Circuit.
Defendants are represented by private counsel at government expense in this RFRA case.
In their reply, defendants assert that plaintiff could not meet his burden of proof on the
TRO because he could not show a substantial likelihood of success on his claims. With
respect to the RFRA claims, the defendants asserted that plaintiff could not meet his
burden of proving a substantial burden on a sincerely held religio.us belief (the requested
visitors were from another faith group) and that security interests outweigh any burden on
his religious practice. In the alternative, the defendants argued that RFRA was
unconstitutional. After briefing was complete, DOJ intervened to support the plaintiff's
argument that RFRA is constitutional. On December 6, 1999, private counsel responded
to the DOJ brief, rebutting the DOJ arguments on constitutionality.

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Regional Counsel Monthly Repon
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Tolley. fisor. Johnston and Post v. Booker, Case No. 97-N-0793, Fel Florence
This is a RFRA case filed by several Odinist inmates challenging the denial of a separate
outdoor worship area for their use. Court previously allowed three additional inmates to
intervene, but refused to certify as a class action. On or about December 3, 1999, 19
additional inmates ·filed motions to join. Court previously appointed counsel for plaintiff
Tolley. On 12113/99, the Judge referred this matter to the Magistrate Judge and directed
that an R&R or status report of necessary proceedings be filed on or before July 30, 2000.
HEARINGS AND TRIALS
Marlow v. U.S•• Case No. 98-1512, FCI Pekin
FTCA action alleging negligence by the government in its failure to know of an employee's
alleged propensity for violence. Inmate alleged that the employee struck him while he was
in the hospital recovering from hemia surgery. Two day trial held in St. Louis. Missouri on
December 8 - 9,1999. The court took the case under advisement.
CRIMINAL MATTERS

('-

United States v. David Michael Sahakian, No. 99-40044-JPG; United States v. Joseph
L. Tokash, No. 99-40045-JPG; United States v. Rodney Allen Dent No. 99-40046-JPG;
United States y. Scott Lee Martin, 99-40048-JPG; United States v. Mitchell E. Kolb,
No. 99-40047-JPG; United States v. John Derel Usher, No. 99-40049-JPG, USP Marion
The above-named inmates are charged with possession of a prohibited object in violation
of 18 U.S.C. § 1791(a)(2). A status conference is set at the USP Marion courtroom on
January 10, 2000. The trial has been set for March 20, 2000.
USA v. Jonathan Michael McGinley, Case No. 99-CR-30D, ADX Florence
Inmate charged with violation of 18 U.S.C. § 1791(a)(2) & (d)(1)(B). for possessing a
homemade weapon at ADX Florence on January 30, 1998.
USA v. Shane Bailey, USP Florance
Inmate killed his cellmate (Wroblewski) on May 23. 1999, at the USP. Bailey told staff he
assisted in cellmate's suicide. Manner of death confirmed as strangulation with a bed
sheet. Information provided to USAO to assist in referral to DOJ for death penalty
consideration.
USA v. Mark Jordan, USP Florence
Inmate was seen chasing inmate Aaron Stone on rec yard in front of CIB unit on June 3,
1999, at the USP. Jordan was seen throwing an object on the roof of CIB unit, which was
later determined to be a sharpened metal instrument. Jordan was restrained by staff
outside 0 Unit. Stone was laying on sidewalk, bleeding. Medical assistance was provided
and Stone was transported to local hospital. Stone was pronounced dead at the local
hospital from multiple stab wounds. Information provided to USAO to assist in referral to
DOJ for death penalty consideration.

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