United States District Court, M.D. Pennsylvania
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[Copyrighted Material Omitted]
Kim Lee Millbrook, Plaintiff, Pro se, Lewisburg, PA.
For United States Of America, Warden Bledsoe, Lt. Fosrot, S.I.S., Hemphill, P.A., Walls, Paramedic, Hawk, Correctional Officer, Unknown Correctional Officer, Security Guard, Edinger, Counselor, Rear, Assistant Warden, Defendants: G. Thiel, U.S. Attorney's Office, Scranton, PA.
William J. Nealon, United States District Judge.
Kim Millbrook, an inmate presently confined at the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg) filed this combined Bivens /Federal Tort Claims Act (FTCA) action. Named as Defendants are the United States of America and the following eight (8) USP-Lewisburg employees: ex-Warden B. A. Bledsoe; Assistant Warden K. Rear; Special Investigative Services (SIS) Lieutenant
James Fosnot; Physician Assistant (PA) Jon Hemphill; Paramedic Bryan Walls; Counselor M. Edinger; Correctional Officer H. Hawk; and Unknown Correctional Officer John Doe. Service of the Complaint was previously ordered.
Plaintiff describes himself as having post traumatic stress and bipolar disorder. See Doc. 1, Section V, ¶ 29. Millbrook states that prior to being transferred to USP-Lewisburg, he was sexually assaulted by two correctional officers and stabbed by another inmate at USP-Terre Haute. After his arrival at USP-Lewisburg, Plaintiff was placed in the Special Management Unit (SMU) where he was interviewed by two non-defendants, Captain Trate and SIS Perrin. He allegedly told those officials that the prisoner who had stabbed him at USP-Terre Haute was now in the USP-Lewisburg SMU and that they were supposed to be kept separated from one another. Plaintiff also informed Trate and Perrin that a bounty had been placed on him by various prison gangs because he had been labeled as an informant and therefore he needed to be transferred or placed in protective custody. Despite expressing those concerns, those officials told Millbrook that there was no protective custody in the SMU, he would not be transferred, and at USP-Lewisburg the policy was " you can fight or get f**ked." Id. at ¶ 8. Furthermore, Millbrook was purportedly forewarned that if he refused to accept a cell mate he would be placed in ambulatory restraints.
Thereafter, Plaintiff claims that he was assaulted by his unidentified cell mate on March 1, 2010.
See id. at ¶ 10. The Complaint next maintains that Plaintiff was sexually assaulted by three (3) correctional officers in the basement of the SMU on or about March 5, 2010. Counselor Edinger is identified as being one of three prison staff members who committed the assault.
See id. at ¶ ¶ 10, 13. According to the Complaint, Plaintiff was again allegedly sexually assaulted on or about November 12, 2010. This attack was carried out by a different unidentified USP-Lewisburg prisoner. It is alleged that he was set up by Correctional Officers Hess and Ross, both of whom are non-defendants, and witnessed by Assistant Warden Rear.
See id. at ¶ 12. Millbrook indicates that the correctional officials who were present were deliberately indifferent. See id.
The Complaint further states that on or about the afternoon of May 12, 2011, Millbrook was physically attacked by his cell mate, Inmate Pettus. Plaintiff asserts that this latest assault resulted because Defendants failed to take adequate measures to protect his safety. Specifically, he claims that prior to the incident both he and his cell mate notified prison staff, including Counselor Edinger, that they were not getting along. Moreover, Pettus allegedly told Edinger that he would injure Millbrook unless he was moved to another cell.
See id. at ¶ 2. Counselor Edinger purportedly responded that he would not separate the cell mates, he didn't care if they fought one another, and that the prison had an " either fight or go in restraints" policy. Id. at (3). It is also contended that Edinger told Plaintiff that either he would kill him or have him killed for being a snitch. See id. at ¶ 14. The Complaint adds that Inmate Counselor Edinger
threatened Plaintiff's life because he was a snitch.
Plaintiff next alleges that Paramedic Walls and an unidentified correctional officer physically and sexually assaulted him while performing a strip search in the SMU shower immediately following the May 12, 2011 incident.
See id. at ¶ 17. He maintains that those officials grabbed and pulled his penis and tightly applied hand restraints. The Complaint indicates that Defendant Hawk denied Millbrook's request for medical treatment and failed to take any action in response to his allegations of physical and sexual abuse. Thereafter, PA Hemphill, Warden Bledsoe, Assistant Warden Rear, and Lieutenant Fosnot likewise failed to take appropriate action with respect to the alleged earlier misconduct of Walls and Hawk.
Plaintiff seeks relief under Bivens with respect to all of the above allegations. The FTCA portion of the Complaint solely regards the alleged May 12, 2011 sexual assault by Defendant Walls. See Doc. 1, ¶ 17 and Doc. 1-1, p. 14. The Complaint requests an award of punitive and compensatory damages.
Defendants have responded to the Complaint by submitting a motion to dismiss and for summary judgment. See Doc. 63. The opposed motion is ripe for consideration.
Defendants seek relief on the grounds: (1) this Court lacks personal jurisdiction over the unknown correctional officer; (2) Plaintiff's claims relating to March 1, 2010 and March 4, 2010 are time barred; (3) there are no allegations of personal involvement by Defendants Bledsoe, Rear, Edinger, Hawk, Walls, Hemphill, and Fosnot, or the claims against those officials are improperly premised on a theory of respondeat superior; (4) Millbrook has not stated a viable claim of failure to protect, retaliation, or deliberate indifference; (5) the May 12, 2011 related claims were not administratively exhausted; (6) Defendant Hemphill has statutory immunity; (7) a cognizable FTCA claim is not stated; and (8) Defendants are entitled to qualified immunity.
Motion to Dismiss
Defendants' pending dispositive motion is supported by evidentiary materials outside the pleadings. Federal Rule of Civil Procedure 12(d) provides in part as follows:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given reasonable opportunity to present all the material that is pertinent to the motion.
Fed. R. Civ. P. 12(d).
This Court will not exclude the evidentiary materials accompanying the Defendants' motion. Thus, their motion will be treated as solely seeking summary judgment.
See Latham v. United States, 306 F.Appx. 716, 718 (3d Cir. 2009) (When a motion to dismiss has been framed alternatively as a motion for summary judgment such as in the present case, the alternative filing " is sufficient to place the parties on notice that summary judgment might be entered." )
Summary judgment is proper if " the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c);
See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32, 43 V.I. 361 (3d Cir. 2001). A factual dispute is " material"
if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is " genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party.
Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992). Unsubstantiated arguments made in briefs are not considered evidence of asserted facts. Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint.
See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Instead, it must " go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted);
see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party " fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23. " 'Such affirmative evidence - regardless of whether it is direct or circumstantial - must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'"
Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
Plaintiff states that following an altercation with Inmate Pettus he was strip searched during which he was allegedly subjected to a sexual assault and unnecessary use of force. The day following that alleged incident, Plaintiff states that he met with PA Hemphill who " examined my penus [sic] area and saw bruising, my wrist are saw bruising prescribed me pain meds and cream wrote a report on the incident" . Doc. 1, Section V, ¶ 26. According to the Complaint, Hemphill allegedly acted with deliberate indifference to Millbrook's need for medical treatment and failed to report the sexual assault.
See id., ¶ 23.
Defendants contend that PA Jon Hemphill is entitled to statutory immunity on the basis that as an employee of the Public Health Services at all times relevant to this Complaint he cannot be sued in a Bivens action. See Doc. 71, p. 36. In support of their argument they have submitted a declaration under penalty of perjury by Hemphill wherein he identifies himself as being a " Commander in the United States Public Health Services" during the relevant times in the Complaint. Doc. 70-1, Exhibit D, ¶ 4. Hemphill acknowledges that he conducted a medical assessment of Millbrook on May 13, 2011. The Defendant adds that Plaintiff gave him a written note alleging sexual assault by a staff member which he turned over to the investigative department.
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