Bailor v. Salvation Army

Decision Date10 June 1994
Docket NumberNo. 1:93-CV-121.,1:93-CV-121.
Citation854 F. Supp. 1341
PartiesAdela T. BAILOR and Darryl Bailor, Plaintiffs, v. SALVATION ARMY, Prison Fellowship Ministries, Ken Jackson, and United States of America, Defendants.
CourtU.S. District Court — Northern District of Indiana

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Robert O. Vegeler, Beers Mallers Backs and Salin, Fort Wayne, IN, Timothy J. Kennedy, Miller Muller Mendelson and Kennedy, Indianapolis, IN, for plaintiffs.

Carolyn Spengler, Hunt Suedhoff Borror and Eilbacher, Fort Wayne, IN, for defendant, Prison Fellowship Ministries and Ken Jackson.

John Wilks, Wilks and Kimbrough, Fort Wayne, IN, for defendant, Salvation Army.

Deborah M. Leonard, U.S. Attys. Office, Fort Wayne, IN, for U.S.

MEMORANDUM OF DECISION AND ORDER

COSBEY, United States Magistrate Judge.

I. INTRODUCTION

This matter is before the Court1 on a series of motions filed by each of the Defendants and this Memorandum of Decision and Order will address each.

Defendants, Prison Fellowship Ministries, ("PFM") and Ken Jackson, ("Jackson") filed a Motion For Summary Judgment on November 18, 1993. Plaintiffs, Adela Bailor ("Bailor") and Darryl Bailor filed a response on January 25, 1994. PFM and Jackson filed a reply brief on February 8, 1994.

On December 23, 1993, the Defendant, Salvation Army, filed a motion for summary judgment. Plaintiffs' response was filed on February 8, 1994. The Salvation Army's reply was filed on March 1, 1994.

On January 21, 1994, the United States filed a motion to dismiss for lack of subject matter jurisdiction and improper venue. Plaintiff's filed a response on March 4, 1994, and the United States filed a reply on April 4, 1994. Plaintiffs filed a sur-reply on May 19, 1994.

For the reasons stated below, all of the foregoing motions will be GRANTED. The respective requests for oral argument are DENIED because they do not comply with N.D.Ind.L.R. 7.5(a), and because oral argument would not be helpful in any event.

II. FACTUAL AND PROCEDURAL HISTORY2

This suit arises out the brutal rape and beating of Adela T. Bailor ("Bailor") by William T. Holly ("Holly") on May 9, 1991. While the Court will ultimately proceed to a discussion of the facts, an initial identification of the parties is necessary.

A. THE PARTIES

At the time of the attack Bailor was an administrative assistant at PFM's Fort Wayne office having recently commenced her employment there in February, 1991. She, and her husband, Plaintiff Darryl Bailor, were then residents of Fort Wayne, but by the time of the filing of the complaint they had relocated to Colorado Springs, Colorado.3 (Plaintiff's Amended Complaint, ? 5).

Defendant, the Salvation Army is a not-for-profit, Illinois corporation, with its principal place of business in Chicago, Illinois. The Salvation Army operates a Chicago residential facility or "halfway house" for criminal offenders ("Salvation Army Facility"). Pursuant to a contract with the Federal Bureau of Prisons ("the BOP"), the Salvation Army Facility houses federal offenders. The performance of this contract, indeed all private halfway house contracts, is governed by a "Statement of Work" ("SOW") promulgated by the BOP.4

PFM is a Washington, D.C. corporation with its principal place of business located in the District of Columbia. PFM provides services and assistance to prison inmates and other criminal offenders at various locations throughout the United States and maintains an office in Fort Wayne, Indiana.

In 1991, Jackson was the Indiana State Director of PFM and worked out of the Fort Wayne Office. He is currently a PFM regional director.

The BOP is the United States federal agency charged with the management and regulation of all federal penal and correctional institutions; it also has safekeeping, care and subsistence responsibilities for those incarcerated persons charged with, or convicted of offenses against the United States. 28 C.F.R. ? 0.95 (July 1, 1993). The BOP maintains a secure facility for housing federal inmates in Chicago, Illinois known as the Metropolitan Correctional Center ("MCC").

Holly is not a party to this action. Rather, he was a federal inmate at the MCC in the custody of the United States Attorney General and the BOP. In 1991 he transferred from the MCC to the Salvation Army Facility from which he later escaped, just a few days prior to the attack on Bailor.

B. FACTS5

Bailor's tragic story starts on August 26, 1975, when Holly, and two other men, committed an armed bank robbery in South Carolina. Holly and one of his co-defendants apparently vaulted over the cashier's counter, grabbed the money and fled. (U.S. reply bf. exhibit F, Unit Team CCC placement recom.). During the course of the robbery they were armed and threatened the lives of the bank employees. Id.

Holly was ultimately convicted on bank robbery in the District of South Carolina, and on February 2, 1976 he was sentenced to eighteen years. (Dupont Declaration, p. 2 ? 3). He was placed at the U.S. Penitentiary in Terre Haute, Indiana so that he could receive drug treatment. (U.S. reply bf. exhibit 9, pre-sentence report).

As with so many others, this was not Holly's first brush with the law, as he had frequently been in the State of Virginia's criminal justice system. Beginning in 1969 and into the mid 1970's, Holly was twice convicted of possession of heroin, once convicted of breaking and entering, and once convicted of forgery and uttering. (U.S. reply bf. exhibit 9, pre-sentence report). In fact, Holly was on parole from this last conviction when he committed the bank robbery. Id.

Holly's juvenile record discloses that he was charged with assault for threatening his mother with a razor blade (later dismissed); larceny (for which he received a suspended sentence); and possession of a concealed weapon (also dismissed). Id. Holly was also the recipient of psychiatric care as a youth. When he was 14 years of age (1961) the Richmond Juvenile Court described Holly as being in "state of anxiety and extreme tension" due to his "awareness to sic very hostile almost sadistic impulses." Id. His condition was later described by the Virginia Medical College as a "nervous brain." At 15 years old (1962) he was diagnosed by a Virginia state hospital as having a "transient situational personality disorder and adjustment reaction of sic adolescence." Id.

Holly's adult record also discloses several arrests prior to 1969, including: threatening his mother; public intoxication; two charges of battery against his wife; a charge of rape which resulted in a 6 month surety for night prowling; forging prescriptions; writing bad checks and vagrancy. (Id. and FBI record information)

Following serving his sentence for bank robbery, Holly was released on federal parole in 1982 in the state of Virginia. Holly violated that parole in 1983, and in 1985 his parole was revoked and he was returned to the federal penitentiary at Terre Haute. While the underlying facts of the parole violation are not revealed in the record, Holly was apparently initially charged with attempted robbery, brandishing a pistol and carrying a concealed weapon. Id. However, as part of an apparent plea agreement, the brandishing charge was dropped and the attempted robbery charge was reduced to petty larceny. Id.

In October of 1988, Holly was released from the Terre Haute prison and placed into a work release program in Fort Wayne, Indiana. Just prior to this placement, the prison chaplain contacted Jackson at PFM's Fort Wayne office to inform him that Holly would soon be in the work release program. (Jackson dep., p. 15). The Chaplain thought that Holly would be eligible for PFM assistance while in Fort Wayne. Id.

The decision whether to provide services to Holly was entirely within Jackson's discretion. (Id. at 24; Roberts Dep., p. 33). In making that determination, Jackson considered the nature of Holly's crime, whether he held genuine religious convictions, and whether there was any known violence in his background. (Jackson Dep., p. 22-24). Jackson did not conduct an independent inquiry to obtain this information; rather, he relied solely on the information provided to him by the prison chaplain. (Jackson dep. p. 18-19). Jackson made no inquiry of Holly about his prior convictions or criminal history. Id.

Based on the information provided, Jackson accepted Holly as a client of PFM and Holly soon began receiving assistance. (Id. at 27). With Jackson's help, Holly soon moved out of the work release center and into his own apartment. Jackson also helped Holly find furniture, a car, and a job in the same building as PFM's offices. (Id. at 31, 65). In addition, PFM often provided Holly with financial assistance.

During his stay in Fort Wayne, Holly routinely made unannounced visits to PFM's offices ?€” as often as two or three times per week. (Id. at 28). During those visits he would frequently make unwelcome and inappropriately flirtatious comments, or gestures, towards Sara Roberts ("Roberts"), an employee at PFM. (Roberts dep., p. 20-26). Roberts complained to Jackson and David Clendenen ("Clendenen"), another PFM employee, but nothing was ever done. Id. In fact, there were no rules which prohibited offenders from coming to PFM's offices unannounced; nor were any security measures employed which prevented offenders from entering the offices or interacting with the staff. Id.

In December of 1988, just a few months after his placement in Fort Wayne, Holly violated the conditions of his release when he left his Fort Wayne apartment and went to Indianapolis for a weekend. (U.S. reply bf. exhibit 9, pre-sentence report). According to Holly's self-report, he went on a "drug binge," passed out, and woke up in Indianapolis. Id. He then apparently called Jackson seeking a return to Fort Wayne. (Roberts' dep., p. 53-4). Before that could be accomplished, however, the...

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