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Millbrook v. United States

United States District Court, M.D. Pennsylvania

May 4, 2017

KIM LEE MILLBROOK, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM

          KAROLINE MEHALCHICK United States Magistrate Judge.

         On March 7, 2012, Plaintiff Kim Lee Millbrook initiated this combined Bivens[1] and Federal Tort Claims Act (“FTCA”) action through the filing of a pro se complaint. (Doc. 1). Named as Defendants in the complaint are the United States of America (the “Government”) and the following eight employees of the United States Penitentiary in Lewisburg, Pennsylvania (“USP Lewisburg”): ex-Warden B.A. Bledsoe; Assistant Warden K. Rear; Special Investigative Services Lieutenant James Fosnot; Physician Assistant (“PA”) Jon Hemphill; Paramedic Bryan Walls; Counselor M. Edinger; Corrections Officer (“CO”) H. Hawk; and a Joh Doe CO. (Doc. 1 , at 1-4). In his complaint, Millbrook alleges that all Defendants failed to protect him from a series of physical and sexual assaults while Millbrook was incarcerated in the Special Management Unit (“SMU”) at USP Lewisburg, and that Paramedic Walls sexually assaulted Millbrook on May 12, 2011, and that CO Frederick was negligent for failing to intervene and stop the May 12, 2011 sexual assault Millbrook suffered at the hands of Walls. (Doc. 1 , at 1-4).

         After service of the complaint, Defendants jointly filed a motion to dismiss and for summary judgment on April 12, 2013. (Doc. 63). On March 25, 2014, the District Court granted summary judgment in favor of all individual Defendants and in regard to all Bivens claims, but permitted the FTCA claim against the Government to continue.[2] (Doc. 88; Doc. 89). Thereafter, the District Court conditionally granted Millbrook's motion for the appointment of counsel (Doc. 115), and Attorney James P. DeAngelo entered his appearance on Millbrook's behalf (Doc. 149). On August 16, 2016, the parties consented to proceed before this Court. (Doc. 144).

         A non-jury trial was held on the morning of October 19, 2016. Both parties filed proposed findings of fact and conclusions of law following trial. (Doc. 159; Doc. 160). The key underlying dispute of fact is whether Paramedic Walls intentionally grabbed and pulled Millbrook's genitals on May 12, 2011. The Court, having heard the testimony and reviewed all documentary evidence, now enters the following Findings of Fact, Conclusions of Law and Decision pursuant to Rule 52 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 52(a).

         FINDINGS OF FACT

         The Court makes the following findings of fact by a preponderance of the evidence and based upon the areas of agreement in the parties' proposed findings of fact, as well as the testimony and evidence that the Court found credible as presented at trial.

         1. Plaintiff Kim Lee Millbrook is an adult male who was incarcerated at USP Lewisburg in Lewisburg, Pennsylvania on May 12, 2011. (Doc. 154, at 4, 15).

         2. Paramedic Bryan Walls is an adult male who was employed by the Bureau of Prisons (“BOP”) at USP Lewisburg. (Doc. 154, at 25-26; Doc. 159, ¶ 3; Doc. 160, ¶ 4).

         3. On May 12, 2011, Millbrook was involved in a physical altercation with his cellmate, inmate Pettus. (Doc. 154, at 4, 6-7; Doc. 159, ¶ 1; Doc. 160, ¶ 3).

         4. Several USP Lewisburg staff members, including Paramedic Walls and CO Matthew Frederick, heard the commotion and came to the cell to break up the fight. (Doc. 154, at 7).

         5. Millbrook and Pettus were both ordered to submit to restraints and removed from their cell. (Doc. 154, at 7, 29; Doc. 159, ¶ 2; Doc. 160, ¶¶ 3, 5).

         6. Pettus and Millbrook were then separated, with Millbrook taken by Paramedic Walls and CO Frederick to the third floor shower area for a medical assessment while Pettus was taken to the first floor shower area. (Doc. 154, at 7-8, 29, 45-46; Doc. 159, ¶ 3; Doc. 160, ¶ 3).

         7. During the medical assessment, Millbrook was cuffed and restrained by CO Frederick. (Doc. 154, at 8-9; Doc. 159, ¶ 4; Doc. 160, ¶ 5).

         8. Paramedic Walls did not lower Millbrook's boxer shorts then grab and pull down on his penis at any point during the medical assessment on May 12, 2011.

         9. On May 13, 2011, Millbrook reported to another staff member that Paramedic Walls sexually assaulted him in the third floor shower area the previous day during the medical assessment. Lieutenant Fosnot began a formal investigation into the alleged sexual assault on the same day as the allegation was reported. Fosnot's investigation ...


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