Kim Millbrook v. United States
714 F. App'x 109
| 3rd Cir. | 2017Background
- Millbrook, a federal prisoner with PTSD and bipolar disorder, alleged multiple assaults at USP-Lewisburg (March 1, 2010; March 5, 2010; November 12, 2010; May 12, 2011) by staff and other inmates.
- He brought Bivens claims against individual BOP employees and an FTCA claim against the United States for the May 12, 2011 sexual assault by Paramedic Walls.
- District Court granted summary judgment for most Bivens claims, allowed the FTCA claim to proceed to a bench trial, then found Millbrook failed to prove the May 12 assault or related negligence.
- Court concluded PA Hemphill (a Public Health Service officer) is statutorily immune from Bivens suit.
- District Court held Millbrook failed to exhaust certain Bivens claims relating to May 12 under the PLRA and failed to show personal involvement or sufficient facts to sustain failure-to-protect claims against several defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PA Hemphill is subject to Bivens liability for alleged medical indifference | Hemphill examined Millbrook and failed to provide/report care after assault | Hemphill is a commissioned Public Health Service officer entitled to statutory immunity under 42 U.S.C. § 233(a) | Hemphill entitled to statutory immunity; Bivens claim dismissed |
| Whether Millbrook exhausted administrative remedies for Bivens claims about May 12, 2011 | Millbrook contends exhaustion was hindered by staff; he exhausted an FTCA tort claim for the same incident | BOP records show inmate grievances did not raise the May 12 Bivens allegations | Court found failure to exhaust Bivens claims for May 12; those claims dismissed |
| Whether Assistant Warden Rear is liable for failure to protect re: Nov. 12, 2010 attack | Rear witnessed the assault and failed to protect Millbrook | Defendants note lack of personal involvement allegations and insufficient facts (identity, date, Rear’s opportunity to intervene) | Summary judgment for Rear: plaintiff failed to show Rear knew of and disregarded substantial risk |
| Whether Paramedic Walls committed battery and Officer Frederick was negligent (FTCA) for May 12, 2011 incident | Millbrook testified Walls grabbed/pulled his genitals during shower search and Frederick failed to respond | Government presented medical assessment showing no injury and argued Millbrook had motive to fabricate allegations; little corroborating evidence | Bench found Millbrook failed to prove battery or negligence by preponderance; FTCA claim dismissed |
Key Cases Cited
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (recognized implied damages action against federal officers for constitutional violations)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burdens and standard)
- Farmer v. Brennan, 511 U.S. 825 (1994) (Eighth Amendment failure-to-protect standard requires subjective knowledge and disregard of substantial risk)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for assessing genuine dispute on summary judgment)
- Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988) (personal involvement requirement for §1983/Bivens claims)
- Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002) (liability for failure to intervene during assaults where officer had opportunity)
- Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000) (scope of Public Health Service immunity under 42 U.S.C. § 233)
- Lansing v. Se. Pa. Transp. Auth., 308 F.3d 286 (3d Cir. 2002) (appellate review standards for legal conclusions and factual findings)
- Cooper v. Lankenau Hosp., 51 A.3d 183 (Pa. 2012) (definition of battery under Pennsylvania law)