United States District Court, M.D. Pennsylvania
KAROLINE MEHALCHICK United States Magistrate Judge.
March 7, 2012, Plaintiff Kim Lee Millbrook initiated this
combined Bivens 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).
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. (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).
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).
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.
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).
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).
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).
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).
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).
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).
During the medical assessment, Millbrook was cuffed and
restrained by CO Frederick. (Doc. 154, at 8-9; Doc. 159,
¶ 4; Doc. 160, ¶ 5).
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.
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 ...