MILLBROOK v. DELGADO et al

Filing 61

Entry granting 29 the United States' Motion for Summary Judgment. Judgment consistent with this Entry shall now issue. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge William T. Lawrence on 3/23/2012. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
KIM MILLBROOK,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

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2:10-CV-245-WTL-WGH

Entry Granting Motion for Summary Judgment
Kim Millbrook an inmate in the custody of the Federal Bureau of Prisons
(“BOP”) who was formerly confined at the United States Penitentiary at Terre
Haute, Indiana (“USP”). Millbrook alleges that on January 6, 2009, he was attacked
and stabbed repeatedly by inmate Davon Golden. The United States is sued by
Millbrook to obtain compensation for this injury. The United States seeks resolution
of Millbrook’s claim through the entry of summary judgment.
Whereupon the court, having read and examined the pleadings, having
considered the United States’ motion for summary judgment and all responses
thereto with the evidentiary record, and being duly advised, finds that the motion
for summary judgment [29] must be granted. This conclusion rests on the following
facts and circumstances:
1.
“Relief from misconduct by federal agents may be obtained either by a
suit against the agent for a constitutional tort under the theory set forth in Bivens
v. Six Unknown Named Agents, 403 U.S. 388 (1971), or by a suit against the United
States under the Federal Tort Claims Act [FTCA] . . . which permits claims based
upon misconduct which is tortious under state law. 28 U.S.C. '' 1346(6), 2680.”
Sisk v. United States, 756 F.2d 497, 500 n.4 (7th Cir. 1985). Milbrook’s claim is
asserted pursuant to the FTCA. The United States is the proper defendant in such
an action. Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008).

2.
As noted, the United States has filed a motion for summary judgment.
“[T]he primary purpose of summary judgment is to isolate and dispose of factually
unsupported claims. . . .” Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir.
2001). “As stated by the Supreme Court, summary judgment is not a disfavored
procedural shortcut, but rather is an integral part of the federal rules as a whole,
which are designed to secure the just, speedy, and inexpensive determination of
every action.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1103 (7th
Cir. 2008) (citations omitted).
•

A motion for summary judgment must be granted Aif 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). A “material fact” is one that “might affect the outcome of the
suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute is genuine only if a reasonable jury could find for the nonmoving party. Id. If no reasonable jury could find for the non-moving
party, then there is no Agenuine@ dispute. Scott v. Harris, 127 S. Ct.
1769, 1776 (2007).

•

At the summary judgment stage, facts must be viewed in the light
most favorable to the nonmoving party only if there is a “genuine”
dispute as to those facts. Fed. R. Civ. P. 56(c). “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.’” Harris, 127 S.
Ct. at 1776 (quoting Matsushita Elec. Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986) (footnote omitted).

•

The nonmoving party bears the burden of demonstrating that such a
genuine issue of material fact exists. See Harney v. Speedway
SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008) (citing cases).
“When a motion for summary judgment is properly made and
supported, an opposing party may not rely merely on allegations or
denials in its own pleading; rather, its response must — by affidavits
or as otherwise provided in this rule — set out specific facts showing a
genuine issue for trial. If the opposing party does not so respond,
summary judgment should, if appropriate, be entered against that
party.” Fed. R. Civ. P. 56(e)(2).

•

To support an assertion that a fact cannot be, or is genuinely disputed,
a party must (a) cite to particular parts of materials in the record,
including depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, interrogatory
answers or other materials, (b) show that the materials cited do not
establish the absence or presence of a genuine dispute, or (c) show that

an adverse party cannot produce admissible evidence to support the
fact. Fed. R. Civ. P. 56(c)(1)(A) and (B). If a party fails to properly
support an assertion of fact or fails to properly address another party's
assertion of fact as required by Rule 56(c), the court may consider the
fact undisputed for purposes of the motion and grant summary
judgment if the motion and supporting materials—including the facts
considered undisputed—show that the movant is entitled to it. Fed. R.
Civ. P. 56(e).
3.
In acting on a motion for summary judgment, “[t]he applicable
substantive law will dictate which facts are material.” National Soffit &
Escutcheons, Inc., v. Superior Systems, Inc., 98 F.3d 262, 265 (7th Cir. 1996). The
substantive law applicable to the United States’ motion for summary judgment is
this:
•

The FTCA waives the Government's sovereign immunity only “under
circumstances where . . . a private person . . . would be liable” under
applicable state tort law. 28 U.S.C. § 1346(b)(1). Midwest Knitting
Mills, Inc. v. United States, 950 F.2d 1295, 1297 (7th Cir. 1991) (“[T]he
FTCA incorporates the substantive law of the state where the tortious
act or omission occurred. . . .”).

•

The underlying tort associated with Millbrook’s claim is the tort of
negligence as recognized in Indiana law. Thus, Millbrook is required to
satisfy Indiana tort law by proving by a preponderance of the evidence
that the United States: (1) owed a duty to the plaintiff Millbrook; (2)
breached that duty by failing to meet the appropriate standard of care;
and (3) Millbrook suffered injury as the proximate result of the United
States’ failure to perform its duty. See Parrott v. U.S., 536 F.3d 629,
635 (7th Cir. 2008); Kincade v. MAC Corporation, 773 N.E. 2d 909, 911
(Ind.Ct.App. 2002); Iglesias v. Wells, 441 N.E.2d 1017, 1019
(Ind.App.Ct. 1982).

•

The United States owed a duty to Millbrook pursuant to 18 U.S.C.
§ 4042. See United States v. Muniz, 374 U.S. 150, 164-65 (1963)
(holding that “the duty of care owed by the Bureau of Prisons to federal
prisoners is fixed by 18 U.S.C. § 4042”). This statute provides in
pertinent part that the BOP “shall . . . (2) provide suitable quarters
and provide for the safekeeping, care and subsistence of all persons
charged with or convicted of offenses against the United States, or held
as witnesses or otherwise” and further shall “(3) provide for the
protection, instruction, and discipline of all persons charged with or
convicted of offenses against the United States.” 18 U.S.C. § 4042(a)(2)(3).

4.
The first element of an action for negligence in Indiana is established
by virtue of Millbrook’s custody at the time of the incident. The facts material to the
remaining elements, construed in the manner most favorable to Millbrook as the
non-movant, are the following:
a.
Devon Golden was also an inmate incarcerated at the USP at the time
of the incident. The court reviewed in camera Golden’s Sentry Inmate
Discipline Data. That data shows that Golden received seven disciplinary
incident reports during his incarceration at the USP and received five
incident reports since his transfer to a different BOP facility. Prior to
January 6, 2009, Golden was sanctioned for 1) possession of a weapon or
sharpened instrument and fighting with another person on September 3,
2008, 2) refusing to obey an order and being insolent to staff member on June
19, 2007, 3) possessing a dangerous weapon on May 6, 2007, 4) assaulting an
inmate on November 15, 2006, 5) threatening and disobeying a direct order
on November 1, 2006, and 6) assaulting an inmate on August 19, 2006.
b.
Diane Quinones is (and at all times relevant to this action was) the
Supervisor of Education at the USP. Carlos Delgado, Steven Markel, and
Billie Kelsheimer were, at all times relevant to the complaint, employed as
teachers at the USP. Katherine Hackett is (and was at all times relevant to
the complaint) an Education Specialist employed at the USP.
c.
On Tuesday, January 6, 2009, at approximately 10:20 a.m., Education
Specialist Hackett advised via radio that a fight had broken out in the
Education Department. At the time of Hackett’s alert, Quinones, Delgado,
Markle and Kelsheimer were in the USP law library. Each of these
individuals responded to the alert by proceeding directly to the Education
Department, where they observed a fight in progress between two inmates
later identified as Golden and Millbrook. Delgado, Markle and Quinones
ordered the fighting inmates to desist and, at that time, observed that inmate
Golden had a sharpened weapon in his hand. Quinones at that time
attempted to take control of Millbrook but was unable to do so due to the
weapon wielded by Golden. The weapon then dropped to the floor and prison
staff broke up the fight and gained control over the combatants.
d.
Markle and Quinones took control of inmate Golden, placing him
against a wall and applying hand restraints to him. Quinones then directed
Markle and other staff to place the other inmates who were at the scene into
classrooms where those inmates could be secured. Once that was
accomplished, Markle escorted Golden to the Red Corridor, where a pat down
search was conducted. Golden was then escorted through secure corridors to

a lieutenant’s office. At the lieutenant’s office a more thorough search of
Golden was conducted, but no contraband was found on his person.
e.
Millbrook was escorted from the Education Department by Delgado,
who first took him to the Red Corridor. Millbrook was then transported to the
Urgent Care Room of the USP’s Health Services. Millbrook’s injuries included
two lacerations to the top of his head, a laceration to the left side of his nose
extending to his lower left eye lid, and a puncture wound to his upper chest
area. Millbrook was stabilized at the Urgent Care Room and was then
transported to a local hospital for further examination and treatment.
f.
As the result of the altercation between inmates Golden and Millbrook,
an investigation was conducted by the BOP. As a part of that investigation, a
video of the incident was recovered. That video is among the evidentiary
materials relied on by the United States in seeking the entry of summary
judgment. The video shows Millbrook and Golden having a conversation in a
hallway at approximately 10:19 a.m. This conversation escalates into an
altercation in which Millbrook is clearly seen initiating the fight by striking
Golden with his fists in the head and upper torso area. The offenders wrestle
and seconds later, at approximately 10:21 a.m., Golden breaks free from
Millbrook and runs away from him down the hallway. As he is running from
Millbrook, Golden can be seen reaching into his trousers for something.
Golden disappears from camera view for a moment, but returns into view
charging toward Millbrook. Millbrook then retreats from Golden, and Golden
is observed striking at Millbrook with a stabbing motion.
g.
The time stamp on the video tape reflects that Millbrook was first
stabbed at 10:21:14 a.m. By 10:21:22 a.m., USP staff arrives at the scene, and
by 10:21:34 a.m. the fight is broken up. The entire occurrence lasts less than
three minutes.
h.
Prior to the January 6, 2009, incident between inmates, Golden and
Millbrook, those two inmates were not known by BOP personnel to pose any
specific risk to one another and were not on separation status from one
another. Further, BOP records do not reflect that either inmate had advised
or alerted BOP staff of any concerns regarding one another. BOP records do
not reflect any prior altercations between inmates Golden and Millbrook. In
addition, Quinones, Markle, Delgado each testified that they were not aware
of negative issues between inmates Golden and Millbrook before the fight.
5.
The second and third elements of Millbrook’s claim of negligence are
whether the BOP breached its duty by failing to meet the appropriate standard of
care and whether Millbrook suffered injury as the proximate result of the United
States’ failure to perform its duty. The real focus as to these elements, of course, is

the second—whether there was a breach of the duty of care. In understanding the
BOP’s duty, it must be remembered that “prisons are dangerous places. Inmates get
there by violent acts, and many prisoners have a propensity to commit more
[violence].” Grieveson v. Anderson, 538 F.3d 763, 777 (7th Cir. 2008); see also United
States v. Tokash, 282 F.3d 962, 970 (7th Cir. 2002) (“[P]risons are inherently
dangerous places and are inhabited by violent people . . . .”).
a.
While Section 4042 establishes the standard of care owed to prisoners
by the BOP, the Bureau “is not an insurer of the safety of all inmates.”
Flechsig v. United States, 786 F. Supp. 646, 650 (E.D.Ky. 1991), aff’d., 991
F.2d 300 (6th Cir. 1993). “The duty under § 4042 is not absolute; generally it
depends on the reasonableness under the circumstances.” Id.
b.
As to whether the United States breached its duty to Millbrook, the
Seventh Circuit has held that in cases such as this the plaintiff “must show
only that BOP staff knew or reasonably should have known of a potential
problem between the two inmates.” Parrott, 536 F.3d at 637 (citing Brown v.
United States, 486 F.2d 284, 288-89 (8th Cir. 1973) (analyzing United States'
liability under the FTCA, in a federal prisoner's failure-to-protect suit, in
terms of what “the federal government knew or reasonably should have
known”); Restatement (2d) of Torts § 314A cmt. e).
6.
Millbrook argues that the United States breached its duty to him by
failing to anticipate that he would be attacked by inmate Golden and by failing to
protect him from such an attack. Millbrook attempts to raise four factual disputes
to compel the denial of the motion for summary judgment. For the reasons
explained below, this effort is unpersuasive.
a.
Millbrook asserts that he notified staff officials of threats by inmate
Golden immediately prior to the stabbing. Millbrook states under the penalty
of perjury that before he was attacked he told Markle, Delgado, and Quinones
that Golden had threated to kill him for being a snitch and sitting in Golden’s
chair inside the classroom. Millbrook explained that he needed to be
separated from this violent inmate out of fear for his health and safety. These
officials told Milbrook to go back to class. As a result, Milbrook went out into
the hallway where inmate Golden was waiting for him and began stabbing
him.
b.
Millbrook’s version of events is so utterly discredited by the video
record of the incident that no reasonable jury could believe his version of
what occurred. In this instance, the court must rely on the facts in the light
depicted by the videotape. See Harris, 127 S. Ct. at 1776. The videotape
directly conflicts with Millbrook’s testimony. The video shows Milbrook (not

Golden) waiting in the hall. Further, Milbrook and Golden are seen to be
talking and during this time a correctional staff member walks past and
Millbrook can be seen smiling in her direction. Millbrook’s demeanor directly
prior to Millbrook striking Golden and initiating the attack is not consistent
with someone who fears for his safety and is seeking protection from
correctional staff. On the contrary, the videotape is not only consistent with
the testimony of Markle, Delgado, and Quiones that they were not aware of
negative issues between inmates Golden and Millbrook before the fight, but
conclusively establishes Millbrook’s demeanor in conversation with Golden
before Millbrook began the assault.
c.
Millbrook also asserts that staff officials came out of the office and
stood back and did nothing to help Milbrook. Millbrook argues that Delgado
told staff to get back so that Golden could continue his attack on Milbrook.
Again, the videotape discredits Millbrook’s account. No reasonable juror could
conclude that BOP staff did not respond as quickly as humanly possible to
the fight. The video tape reflects that less than thirty seconds passed between
the time Millbrook was stabbed, Golden was disarmed, and both men were
restrained. The BOP staff’s response to the fight was quick, efficient and in
all ways professional.
d.
Millbrook asserts that because Golden had a history of violence, had
previously attacked other inmates, and had been previously found in
possession of contraband weapons prior to the January 6, 2009, incident, the
United States was on notice that Golden posed a particular risk to Millbrook.
In response to his assertion, the court completed an in camera review of
Golden’s Sentry Inmate Discipline Data and disciplinary incident reports.
From that review, the court finds that no reasonable juror could conclude
that Golden’s past conduct put the United States on notice that Golden posed
a particular risk to Millbrook. Golden received six incident reports between
August 2006 and January 6, 2009 (when the attack occurred). Two of these
conduct reports were for assaulting another inmate, but there is no apparent
connection between these assaults and the assault on Millbrook.
e.
Millbrook argues that he submitted a form on January 22, 2009, in
case no TRT-NCR-2010-01849 informing staff officials that Golden
threatened Millbrook. Even if such a form was submitted, it is irrelevant
because it was submitted after the January 6, 2009, incident. Any forms
submitted after the date of the fight would not be sufficient to permit prison
staff notice sufficient to stop a fight which had already occurred.
7.
The United States correctly argues that the undisputed facts
demonstrate no breach of duty by the United States to Millbrook with respect to the
occurrence of January 6, 2009. Prisons are inherently dangerous places populated

by dangerous and violent people (such as Golden and Millbrook). The undisputed
facts establish that the United States had no reason to believe that Golden posed a
particular and specific threat to Millbrook. See Grieveson v. Anderson, 538 F.3d 763,
777 (7th Cir. 2008). Absent cause or reason to believe that Golden posed a specific or
particular risk to Millbrook, the United States had no duty to take specific steps to
protect Millbrook from Golden.
8.
In addition to not having breached any duty owed by the United States
to Millbrook, the evidence establishes that Millbrook was the aggressor in the
altercation between Millbrook and Golden. The proximate cause of Millbrook’s
injuries was Millbrook’s ill-advised decision to attack inmate Golden, who turned
out to be armed and disposed to protect himself. The evidence also establishes that
USP personnel responded promptly to the altercation, separated the combatants as
soon as practical, and provided Millbrook with prompt and appropriate medical
attention.
9.
“'It is a well-settled rule that a party opposing a summary judgment
motion must inform the trial judge of the reasons, legal or factual, why summary
judgment should not be entered.'“ Sanders v. Village of Dixmoor, 178 F.3d 869, 870
(7th Cir. 1999) (quoting Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir.
1983)). As explained herein, Millbrook has not come forward with evidence that
there is a genuine issue of material fact for trial. Specifically, Millbrook cannot
establish either the breach of any duty owed to him by the United States with
respect to the occurrence at issue or that the proximate cause of the incident was
the result of acts or omissions by the staff at the USP. Accordingly, the United
States’ motion for summary judgment [29] is granted.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

03/23/2012
Date: _________________

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana