Millbrook v. United States Of America et al

Filing 161

MEMORANDUM (Order to follow as separate docket entry) re 1 Complaint filed by Kim Lee Millbrook. Signed by Magistrate Judge Karoline Mehalchick on 5/4/2017. (cw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
KIM LEE MILLBROOK,
Plaintiff

CIVIL ACTION NO. 3:12-CV-00421

v.

(MEHALCHICK, M.J.)

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM
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

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Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971). “Bivens established that a citizen suffering a compensable injury
to a constitutionally protected interest could invoke the general federal-question jurisdiction of
the district courts to obtain an award of monetary damages against the responsible federal
official.” Butz v. Economou, 438 U.S. 478, 504 (1978).

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).

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The Government is the only proper defendant to an FTCA claim. See CNA v. United
States, 535 F.3d 132, 138 n.2 (3d Cir. 2008).
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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.
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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
included interviews of Millbrook, Walls, and CO Frederick. (Doc. 154, at 10-11, 13,
54, 61-62).
10. Also as part of Fosnot’s investigation, PA Hemphill conducted a medical assessment
of Millbrook on May 13, 2011. Hemphill found that there were no signs of bruising or
injury to Millbrook’s penis. (Doc. 154, at 53-57).
11. Lieutenant Fosnot’s investigation ultimately concluded that Millbrook’s claim of
sexual assault was not sustained. (Doc. 154, at 64).
12. In finding that Paramedic Walls did not lower Millbrook’s boxer shorts, then grab his
penis and pull on it, the Court acknowledges that the parties’ accounts of what
transpired in the third floor shower area differ significantly. At trial, the Court heard
the following testimony:
a. Millbrook testified that while he was cuffed and restrained by CO Frederick,
Paramedic Walls removed his boxer shorts, grabbed his penis, and pulled down
on it. This assault allegedly lasted for ten-to-fifteen seconds, as Walls
purportedly only released his grip after Millbrook asked him “why are you
pulling on my penis like that, man[?]” (Doc. 154, at 9, 16-17; Doc. 160, ¶ 5).
b. Millbrook asserted that Paramedic Walls and CO Frederick left him in the third
floor shower area after the sexual assault. A patrolling CO purportedly came

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across Millbrook and escorted him back to his cell, but did not report the assault
at that time. (Doc. 154, at 9-10).
c. Millbrook claimed that he noticed blood in his urine for a week after the assault
and that he was in pain for over a month. (Doc. 154, at 13-14).
d. Paramedic Walls and CO Frederick both testified that they lacked independent
recollections of the medical assessment and alleged assault, as they instead each
relied on their notes and reports from the medical assessment and Lieutenant
Fosnot’s subsequent investigation. Based on those notes, Walls claimed that he
removed Millbrook’s outer shorts as part of the routine medical assessment but
never removed Millbrook’s boxer shorts or touched his genitals, and that
Millbrook never complained of any injuries. Frederick likewise testified on the
basis of an affidavit prepared by Fosnot that he signed during the investigation,
which stated that Frederick did not see anything inappropriate during Walls’
medical assessment of Millbrook on May 12, 2011. (Doc. 154, at 27, 32-36, 4448; Doc. 160, ¶¶ 7, 9-10).
e. PA Hemphill testified that he also lacked an independent recollection of his
medical assessment of Millbrook on May 13, 2011 as part of the Fosnot
investigation. Relying on his notes from that medical assessment, Hemphill
stated that he found no evidence of genital bruising or injury to support
Millbrook’s complaints of genital pain. Hemphill further testified that because
the penis is a very vascular area, it generally bruises easily. At trial, Millbrook
did not dispute any aspect of Hemphill’s testimony. (Doc. 154, at 53-57).

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13. As the finder of fact in this bench trial, the Court is “required to . . . make subjective
credibility determinations about the witnesses who testified . . . .” Bayer AG v. Housey
Pharm., Inc., 386 F. Supp. 2d 578, 580 (D. Del. 2005), aff'd, 189 F. App'x 969 (Fed.
Cir. 2006) (not precedential); see also Fed. R. Civ. P. 52(a)(6) (“Findings of fact,
whether based on oral or other evidence, must not be set aside unless clearly
erroneous, and the reviewing court must give due regard to the trial court's
opportunity to judge the witnesses' credibility.”). The Court finds that several issues
weigh on the credibility of witnesses’ statements at trial. Specifically, the Court notes
the following:
a. Counsel for the Government avers that Millbrook has a long history of bringing
sexual assault allegations against other BOP staff members and inmates, as
counsel argued that these accusations were a way for Millbrook to potentially
manipulate his cell assignments. The Court finds the Government’s theory to be
a credible explanation for why Millbrook would have a motive to falsely allege
that he was sexually assaulted by Paramedic Walls, particularly in light of the
fact that Millbrook admitted at trial that he often refuses new cellmates. 3 (Doc.
154, at 17-21).

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At trial, the Government also attempted to impeach Millbrook’s credibility by pointing
to inconsistencies regarding the timing of the filing of his complaint. Namely, the Government
points out that Millbrook alleged that he handed his complaint to USP Lewisburg staff to be
mailed on February 21, 2012, but that this would have been impossible because the complaint
was not signed and dated by Millbrook until February 28, 2012. Although Millbrook admitted
that he “might have misconstrued [the] date,” his complaint would have been deemed timely
filed under either date. Given the lack of evidence that Millbrook intentionally tried to deceive
(footnote continued on next page)
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b. The Court finds the testimony of PA Hemphill and Lieutenant Fosnot to be
particularly convincing. Specifically, it is undisputed that Fosnot initiated an
investigation immediately after Millbrook’s allegations were reported to him,
resulting in Hemphill conducting a medical assessment the day after the alleged
assault occurred. Their prompt response belies any insinuation that there may
have been a widespread cover-up of the sexual assault. Moreover, Millbrook
does not dispute Hemphill’s conclusions from the medical assessment that there
were no signs of bruising or injury to Millbrook’s genital area. The Court also
attributes significant weight to Hemphill’s explanation that the penis bruises
easily because it is a very vascular area. Partially based on Hemphill’s findings,
Fosnot concluded that the sexual assault charge was not sustained. The Court
finds that the testimony from Hemphill and Fosnot considerably undermines
Millbrook’s theory of the case. (Doc. 154, at 53-57, 64, 68).
c. The Court additionally finds credible the statements by all four Government
witnesses that they would not have risked jeopardizing their careers with the
BOP by either engaging in or covering up a sexual assault. (Doc. 154, at 34, 47,
57, 64-65).
d. Counsel for Millbrook points out that none of the Government’s witnesses have
independent recollections of the alleged sexual assault or of the investigation
that followed, and argues that Millbrook’s testimony should receive greater

the Court, the Court does not find this discrepancy to be probative of Millbrook’s propensity
for truthfulness, or lack thereof. (Doc. 75, at 11; Doc. 88, at 11-13 & n.10; Doc. 154, at 21-24).
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weight because Millbrook was the only witness who claimed to have a present
recollection of the incident. The Court finds that the Government witnesses’
reliance on their notes and reports as opposed to independent recollections does
not render their testimony significantly less credible. Given that this trial was
held over five years after the events at issue, it is not unreasonable that the
Government’s witnesses lacked independent recollections of the alleged sexual
assault and subsequent investigation. (Doc. 154, at 27, 31-32, 35, 48, 54, 57-58,
60, 66; Doc. 160, ¶ 10).
e. Counsel for Millbrook also notes a discrepancy in the materials that CO
Frederick relied on for his testimony. On the day of the alleged sexual assault,
Frederick submitted a memorandum indicating that he took inmate Pettus to
the first floor shower area for a medical assessment after responding to the cell
fight, but the memorandum made no reference to Frederick’s presence in the
third floor shower area for Millbrook’s medical assessment. During the
subsequent investigation into the alleged sexual assault, Frederick signed an
affidavit attesting that he was present for Millbrook’s medical assessment in the
third floor shower area but omitting any mention of Frederick’s presence in the
first floor shower area with Pettus. All parties agreed at trial that Frederick was
present in the third floor shower area for Millbrook’s medical assessment, but
the Government never explained why Frederick omitted this information from
his initial report. Accordingly, the Court finds that the weight afforded to the
documents that Frederick relied on, and thus Frederick’s testimony in general,

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must be discounted. (Defendant Ex. 2, at 13; Defendant Ex. 5, at 9-10; Doc.
154, at 49-51; Doc. 160, ¶ 11).
f. At trial, counsel for Millbrook also elicited testimony that there was no
available video evidence of the alleged assault, and inferred that Paramedic
Walls and CO Frederick may have taken Millbrook to the third floor shower
area specifically because it was an isolated location. Walls conceded that he
sometimes takes inmates to the medical area for medical assessments as
opposed to the showers, particularly where injury is readily apparent. However,
the fact that USP Lewisburg staff also took inmate Pettus to the showers for his
medical assessment—albeit to the first floor shower area—undermines any
accusation that there is something inherently suspicious about where Walls and
Frederick chose to conduct the medical assessment of Millbrook. The Court
therefore does not find that the lack of video evidence or location of Millbrook’s
medical assessment significantly undermines the Government’s narrative. (Doc.
154, at 40-41, 45).
14. On balance, the Court finds that the Government’s witnesses provided more credible
testimony than Millbrook. Even casting aside CO Frederick’s testimony on account
of the unexplained discrepancy in his notes, the remaining undisputed evidence and
testimony clearly supports the Government’s version of events. Significantly,
Millbrook does not dispute PA Hemphill’s finding that there were no signs of bruising
or injury to Millbrook’s genitals, and Millbrook failed to produce any evidence aside
from his own testimony to support his claim that he sustained injury to that area at
the hands of Paramedic Walls. The Court therefore finds that Paramedic Walls did
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not lower Millbrook’s boxer shorts then grab and pull down on his penis on May 12,
2011.
CONCLUSIONS OF LAW
1. The Court has jurisdiction over the instant action under the FTCA. 28 U.S.C. §§ 1331,
1346.
2. Venue is proper in this Court, as the events giving rise to Millbrook’s claim occurred
within the Middle District of Pennsylvania. 28 U.S.C. § 1391(b)(2).
3. The FTCA provides that the Government shall be liable to the same extent as a private
individual “for money damages . . . for . . . personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment . . . .” 28 U.S.C. § 1346(b)(1).
4. Paramedic Walls and CO Frederick are “employees of the Government” as defined by
the FTCA. 28 U.S.C. §§ 1346, 2671.
5. A federal court adjudicating a case under the FTCA must apply “the law of the place
where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
6. Accordingly, because the acts or omissions at issue here occurred within the
Commonwealth of Pennsylvania, Pennsylvania law applies.
7. In order to establish liability in tort for negligence, Pennsylvania law requires the
following four elements to be satisfied: “(1) a duty of care; (2) the breach of the duty;
(3) a causal connection between the conduct and the resulting injury; and (4) actual
loss or damage resulting to the plaintiff.” Farabaugh v. Pa. Tpk. Comm'n, 911 A.2d
1264, 1272-73 (Pa. 2006).

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8. “Under Pennsylvania law, battery is defined as an intentional ‘harmful or offensive
contact with the person of another.’” Nace v. Pennridge Sch. Dist., 185 F. Supp. 3d 564,
584 (E.D. Pa. 2016) (quoting C.C.H. v. Philadelphia Phillies, Inc., 940 A.2d 336, 340 (Pa.
2008)). However, “[t]he incidental and necessary touchings by correctional officers of
inmates in the performance of their duties are not batteries, but are privileged
contacts.” Picariello v. Fenton, 491 F. Supp. 1026, 1038 (M.D. Pa. 1980) (citing
Restatement (Second) of Torts s 132, Comment b (1965)).
9. Here, the Court finds that Millbrook has failed to establish by a preponderance of the
evidence that CO Frederick breached a duty of care by failing to respond to the alleged
sexual assault at the hands of Paramedic Walls because there is insufficient evidence
that the sexual assault ever occurred, and because there is insufficient evidence that
Millbrook suffered actual injury to his penis.
10. The Court also finds that Millbrook has failed to establish by a preponderance of the
evidence that Paramedic Walls touched Millbrook in a harmful or offensive manner
that exceeded the bounds of the “privileged contacts” Walls was entitled to make as a
BOP employee performing the routine functions of his job. The Court concludes that
any physical contact Walls made with Millbrook on May 12, 2011 was limited to the
incidental and necessary touching that was required for Walls to complete his medical
assessment of Millbrook.
11. Accordingly, the Court finds that Millbrook has failed to prove by a preponderance of
the evidence that CO Frederick acted negligently or that Paramedic Walls committed
the intentional tort of battery.

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CONCLUSION
For the foregoing reasons, judgment is entered in favor of the Government and against
Plaintiff Kim Lee Millbrook.
An appropriate Order shall follow.

BY THE COURT:

s/ Karoline Mehalchick

Dated: May 4, 2017

KAROLINE MEHALCHICK
United States Magistrate Judge

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