ALD-155                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                 No. 12-1531
                                 ___________

                              KIM MILLBROOK,
                                        Appellant

                                       v.

                      UNITED STATES OF AMERICA
                  ____________________________________

                On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                         (D.C. Civil No. 11-cv-00131)
                 District Judge: Honorable William J. Nealon
                 ____________________________________

     Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
     or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                April 12, 2012
            Before: SLOVITER, FISHER and WEIS, Circuit Judges
                         (Opinion filed April 23, 2012)
                                  _________

                                   OPINION
                                   _________

PER CURIAM.

      Kim Millbrook, an inmate housed at the United States Penitentiary,

Lewisburg Pennsylvania (USP-Lewisburg), appeals from an order of the District
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Court granting defendant’s motion for summary judgment. For substantially the

same reasons provided by the District Court, we will affirm.

                                         I.

      Millbrook filed a complaint pursuant to the Federal Tort Claims Act

(FTCA), 28 U.S.C. §§2671-2680, naming as defendant the United States of

America. According to the complaint, Millbrook was subjected to sexual assault

while housed in the Special Management Unit (SMU) at USP-Lewisburg on or

about March 5, 2010. On that date, Millbrook alleged that he was taken to the

basement of the SMU and forced to perform oral sex on Correctional Officer

Pealer while Correctional Officer Edinger held his neck and Correctional Officer

Gimberling stood watch by the door. He also claimed that he was verbally

assaulted during the incident.

       Defendant filed a motion to dismiss or in the alternative for summary

judgment, which the District Court granted. According to the defendant,

Millbrook was involved in an altercation with his cell mate on the morning of

March 4, 2010. As a result, both prisoners were placed in restraints and removed

from their cell. They were then transferred to separate holding cells pending injury

assessment and photographs. Millbrook claims that he was assaulted the next day



                                         2
by correctional staff. Following an internal investigation, which included a

medical assessment, Millbrook’s claim was found to be unsubstantiated.

      After reviewing Millbrook’s response to defendant’s motion, the District

Court concluded that the defendant was entitled to summary judgment because

Millbrook’s FTCA claim is precluded by Pooler v. United States, 787 F.2d 868,

872 (3d Cir. 1986). This appeal followed.

                                         II.

      We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review

over a district court’s grant of summary judgment. See Kaucher v. County of

Bucks, 455 F.3d 418, 422 (3d Cir. 2006). The District Court’s grant of summary

judgment will be affirmed if the record demonstrates that there is no genuine issue

as to any material fact and the movant is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56(c). An issue is material if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

We may summarily affirm if Millbrook’s appeal presents no substantial

question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.




                                          3
                                          III.

      Millbrook contends that the defendant is liable under the FTCA for the

alleged assault on March 5, 2010. Under 28 U.S.C. § 2680(h), the United States is

generally not liable for intentional torts of its employees except for certain

intentional torts committed by investigative or law enforcement officers. See 28

U.S.C. § 2680. We have limited claims that arise under § 2680(h) to cases in

which an intentional tort is committed by a law enforcement or investigative

officer while executing a search, seizing evidence, or making arrests for violations

of federal law. Pooler, 787 F.2d at 872. Defendant argued that because the alleged

assault did not arise out of conduct during an arrest, search, or seizure, Millbrook’s

tort claim is not cognizable.

      Defendant did not dispute that correctional officers may be deemed law

enforcement officers for purposes of the FTCA. Assuming arguendo that they are,

to the extent that Millbrook alleges that handcuffing and taking him to the

basement of the SMU amounts to an unconstitutional seizure, we agree with the

District Court that Pooler limits the term “seizure” to the seizure of evidence. Id.

Further, Millbrook did not allege that the alleged conduct occurred in the course of

an arrest for a violation of federal law, or during the course of a search. See 28

U.S.C. § 2680(h). Thus, we agree with the District Court that while the alleged
                                           4
conduct is troubling, Millbrook has not shown that he is entitled to relief under the

FTCA.1

      As Millbrook’s appeal presents no substantial question, we will summarily

affirm the District Court judgment. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P.

10.6. Millbrook’s motions for appointment of counsel are denied.




1
  We also agree with the District Court that although Millbrook raises assertions of
negligent behavior on the part of the correctional officers, it is clear that the alleged
actions were intentional. Indeed, Millbrook stated in his complaint that he was
“sexually assaulted and battered maliciously with evil intent by officers Pealer,
Edinger and Gimberling.” See Complaint at 5. Therefore, we agree that he did not
state a negligence claim upon which relief could be granted. See Fed. R. Civ. P.
12(b)(6).
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