United States District Court, M.D. Pennsylvania
William J. Nealon United States District Judge
April 29, 2015, Plaintiff, Kim Millbrook, an inmate formerly
incarcerated in the United States Penitentiary, Lewisburg,
Pennsylvania (“USP-Lewisburg”), instituted the
above-captioned action by filing a pro se complaint
pursuant to the Federal Tort Claims Act, 28 U.S.C. §
2671 et seq. (“FTCA”), against
Defendant, the United States of America. (Doc. 1). Plaintiff
alleges that on March 28, 2013, Lieutenant Johnson and
Correctional Officer Stevens approached Plaintiff's cell
and informed Plaintiff that he would be receiving a new
cellmate. Id. Plaintiff allegedly refused his new
cellmate because of “a contract hit out on [his] life
by known gang affiliated members and non-members due to
[Plaintiff] being labeled a jailhouse snitch and a
homosexual.” Id. Plaintiff claims that he
informed Lieutenant Johnson that “the gangster
disciples, latin kings, District of Colombia (D.C.) members,
CMP's and bloods and anyone [Plaintiff has] been forced
to cell with would and has attacked [him] and trying to hurt
or kill [Plaintiff] due to a contract hit out on
[him].” (Doc. 1 at 6). Lieutenant Johnson allegedly
informed Plaintiff that he “did not care, ” and
that Plaintiff “was still getting a cellmate or [he]
would be extracted from the cell and placed into”
ambulatory restraints until he accepted a cellmate. Id.
Plaintiff states that Lieutenant Johnson and Correction
Officer Stevens then left the area, but Lieutenant Johnson
returned later with an unknown Lieutenant and the “use
of force team . . . .” Id. Plaintiff claims he
was then told to “cuff up, [and] that [he] was going
into ambulatory restraints” because he refused his new
cellmate. (Id.). Plaintiff alleges that he complied,
but claims he was “hand cuffed excessively tight around
[his] wrist area . . . .” Id.
to Plaintiff, he was then:
taken by use of force team and unknown lieutenant and Lt.
Johnson along with medical healthcare employee EMT Barth to a
room on the front of F-Block 3rd floor where the
use of force team began to strip [him] of [his] clothes and
applied the belly chains, hand and leg restraints extremely
tight to the point where [Plaintiff] could not breath and
where [his] hands, legs and feet lost blood circulation in
which [he] complained to EMT Barth, Lt. Johnson and use of
force team that [he] was having trouble breathing.
Id. EMT Barth and the Use of Force Team then
allegedly told Plaintiff that “you will learn to do as
you are told and maybe this will teach you to do as you are
told . . . .” (Doc. 1 at 7).
alleges that he was taken by the Use of Force Team,
Lieutenant Johnson, an unknown Lieutenant, and EMT Barth to
“G-Block Cell 101.” Id. He claims that
he was placed in that cell, which had its window closed and a
room temperature of at least a 120 degrees. Id.
Plaintiff states that he “immediately began to sweat
and gasp for air from the poor ventilation and passed out . .
. .” Id.
[a]fter being inside the cell 101 G-Block for awhile [he]
received a visit from Lt. Johnson and Lt. Knapp . . . [which
is when Plaintiff] informed them that [he] was in severe pain
from the restraints being to[o] tight and [he] was having
trouble breathing due to the belly chains being to[o] tight
around [his] waist and the poor ventilation inside the cell,
also the metal pipe that gives off heat from the months of
October [through] April had the temperature inside the cell
[at] 120 degrees . . . .
Id. Plaintiff also alleges that he told “them
[he] suffers from high blood pressure and had passed out
already inside the cell and needed to be taken out of the
restraints and the window inside the cell opened so as to let
some air inside the cell.” Id. Additionally,
Plaintiff claims he “told them that [he] was being
falsely accused and that they were violating BOP policy,
procedure and protocol and falsifying government documents by
subjecting [him] to tortuous and abusive behavior and needed
to remove [him] immediately out of the cell and the
restraints.” Id. Plaintiff alleges that
“Lt. Knapp and Lt. Johnson told [him] that until [he]
did what they told [him] to do which is to except (sic) a
violent cellmate [he] would stay in restraints inside cell
101 G-Block . . . .” Id.
claims that he then “received another visit from A.W.
Wilson, ” at which time he claims to have
“informed [A.W. Wilson] that [Plaintiff's] life,
health and safety are and is in ‘imminent danger'
at all times at Lewisburg SMU program due to [Plaintiff]
being labeled a jailhouse ‘snitch' and a
homosexual.” Id. He also alleges that he
informed A.W. Wilson of the “contract hit out on
[Plaintiff's] life by known gang affiliated inmates . . .
and also non-members.” Id. Plaintiff states
that he told A.W. Wilson that he “was brought up on
false allegations by Lt. Johnson and use of force team and
placed in ambulatory restraints unjustly, that due to the
restraints being applied to[o] tight Plaintiff was having
trouble breathing, also the restraints were cutting off all
blood circulation in [his] arms, hands, legs and feet . . .
.” Id. Plaintiff claims he also informed A.W.
Wilson that he was “in severe pain and that the room
was to[o] ‘hot, ' and also [his] feet, fingers,
hands, and wrists were swollen and turned blue.”
Id. Plaintiff alleges that he also told A.W. Wilson
Lt. Johnson and C.O. Stevens [were] trying to force a violent
inmate in the cell with [Plaintiff] on F-Block and [he]
refused the inmate to be celled with [him] out of fear for
[his] safety due to [him] being attacked and physically and
sexually assaulted by violent inmates and staff officials
while at Lewisburg SMU program and that [he has] requested
protective custody and to be transferred to a safer prison
facility . . . .
(Doc. 1, at 9-10).
to Plaintiff, A.W. Wilson stated “that he would not
help [Plaintiff] because [he] told [A.W. Wilson] to have
[Plaintiff] removed from the ambulatory restraints and from
the cell that was 120 degrees . . . .” Id.
Plaintiff alleges that A.W. Wilson then stated that Plaintiff
“needed to remember that [he] was in Lewisburg and we
do what we want to around here, that he does not believe his
staff officials would make up fake incident reports against
[Plaintiff] and even if it was true, who do you think I'm
going to believe.” Id. According to Plaintiff,
A.W. Wilson then “said that he would believe the staff
before he would believe [Plaintiff] anyday.”
Id. He claims that A.W. Wilson also stated that he
knew who Plaintiff “was and for [him] to stop filing
lawsuits and admin. remedies on staff and inmates here at
Lewisburg, and from now on A.W. Wilson was going to be
keeping a close eye on” Plaintiff. Id. at
10-11. Plaintiff claims that this interaction was witnessed
by “an inmate ‘Black' whom was forced into
the cell with [Plaintiff] and told by Lt. Knapp and A.W.
Wilson that Plaintiff was ‘a rat' and to beat
[Plaintiff] up.” Id.
also claims that on the evening of March 28, 2013, cell 101
on G-Block was “infested with bugs like roaches, and
rodents like rats and mice . . . .” Id. Also
during that time, Plaintiff states that “the heat
inside the room was 120 degrees . . . without any air flow .
. . [and he was] still in extremely tight leg and hand
restraints, and belly chain around waist [which] cut off
[his] air supply to the point where Plaintiff passed out and
had to be revived by a EMT-George on evening watch . . .
.” Id. Plaintiff alleges that EMT-George told
him “in front of a Lt. Carwascillo [that he]
should've let [Plaintiff] die for all the trouble [he
has] caused around here filing all the lawsuits against
Lewisburg staff like EMT-Potter, EMT-Walls, and Doctor Pigos
who I work with and are good friends of mine . . . .”
Id. Plaintiff claims that he “told EMT-George
and Lt. Carwascillo that [he] needed to be taken out of
ambulatory restraints, . . . the window inside the cell
needed to be opened to let some air flow into the room as to
cool the room due to the extreme heat and to unchain the
belly chain from around [Plaintiff's] waist and chest
area . . . .” Id. He states that these
requests were refused. Id. Instead, Plaintiff
alleges, “EMT-George began pulling on [Plaintiff's]
wrists and hands to inflict severe pain and in a hurtful
manner . . . .” Id.
during the evening of March 28, 2013, Plaintiff alleges that
“EMT-Potter came in with Lt. Dawkins into cell 101
G-Block and Plaintiff informed them to remove the leg and
hand restraints also the belly chain so that [he] could
breath but they refused.” (Doc. 1 at 11). According to
Plaintiff, “Lt. Dawkins began acting like he was going
to loosen the restraints but instead tightened them around
[Plaintiff's] hands and wrists thus inflicting severe
pain . . . .” Id. Plaintiff was removed from
his restraints on March 29, 2013. Id. at13.
claims that he “suffered from permanent nerve damage
from these abusive attacks like tendinitis, permanent
scarring around wrist and ankles, numbness, mental and
emotional scarring for life and in constant pain at all
times, suffering from symptoms of arthritis and joint pain
and taking medication called Meloxicam 7.5 mg, also suffering
symptoms from PTSD (post traumatic stress disorder) like
nightmares, panic attacks, paranoia, suicidal tendencies . .
. .” Id.
Memorandum and Order dated September 16, 2016, this Court
granted, in part, and denied, in part, Defendant's motion
for summary judgment. (Docs. 23, 24). Specifically, this
Court granted summary judgment with respect to
Plaintiff's claims seeking monetary damages for any due
process claim arising out of his disciplinary proceeding that
has not been overturned or invalidated and the intentional
tort claims advanced against EMT Barth and EMT George.
motion for summary judgment was denied as to Plaintiff's
negligence claims and remaining intentional tort claims.
Id. In particular, the Court found the following
facts in dispute: 1) whether Plaintiff became disruptive in
his cell on March 28, 2013; 2) whether Plaintiff was
medically assessed and found to have no injuries after being
removed from his cell; and 3) whether the ambulatory
restraints placed on Plaintiff were excessively tight and
caused Plaintiff to suffer injuries. The parties were then
permitted thirty (30) days within which to file any
additional dispositive motions. Id.
October 12, 2016, Defendant filed a second motion for summary
judgment. (Doc. 26). On October 26, 2016, Defendant filed a
statement of facts, and brief in support. (Docs. 35-36). The
motion is fully briefed and is ripe for disposition. For the
reasons stated below, Defendant's motion will be granted.
STANDARD OF REVIEW
to Federal Rule of Civil Procedure 56(a) “[t]he court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “[T]his
standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (emphasis in original). Once such a
showing has been made, the non-moving party must offer
specific facts contradicting those averred by the movant to
establish a genuine issue of material fact. Lujan v.
Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990).
Therefore, the non-moving party may not oppose summary
judgment simply on the basis of the pleadings, or on
conclusory statements that a factual issue exists.
Anderson, 477 U.S. at 248. “A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion by citing to particular parts of materials in
the record ... or showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1)(A)-(B). In
evaluating whether summary judgment should be granted,
“[t]he court need consider only the cited materials,
but it may consider other materials in the record.”
Fed.R.Civ.P. 56(c)(3). “Inferences should be drawn in
the light most favorable to the non-moving party, and where
the non-moving party's evidence contradicts the
movant's, then the non-movant's must be taken as
true.” Big Apple BMW, Inc. v. BMW of N. Am.,
Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert.
denied 507 U.S. 912 (1993).
“facts must be viewed in the light most favorable to
the nonmoving party only if there is a ‘genuine'
dispute as to those facts.” Scott v. Harris,
550 U.S. 372, 380 (2007). If a party has carried its burden
under the summary judgment rule,
its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial. The mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact. When
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no ...