BLD-357                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-2138
                                       ___________

                                KIM LEE MILLBROOK,
                                             Appellant

                                             v.

              UNITED STATES OF AMERICA; WARDEN BLEDSOE;
                     LT. FOSNOT, S.I.S.; HEMPHILL, P.A.;
                 WALLS, Paramedic; HAWK, Correctional Officer;
              UNKNOWN CORRECTIONAL OFFICER, Security Guard;
                  EDINGER, Counselor; REAR, Assistant Warden
                   ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                        (D.C. Civil Action No. 3-12-cv-00421)
                   Magistrate Judge: Honorable Karoline Mehalchick
                     ____________________________________

       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
                                 September 21, 2017

          Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges

                            (Opinion filed: October 27, 2017)

                                        _________

                                        OPINION*
                                        _________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

      Kim Lee Millbrook appeals from the judgment of the United States District Court

for the Middle District of Pennsylvania. We will summarily affirm.

                                            I.

      In March 2012, Millbrook, a prisoner confined at USP-Lewisburg, filed a

combined action pursuant to Bivens v. Six Unknown Named Agents of the Federal

Bureau of Investigation, 403 U.S. 388 (1971), and the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. §§ 2671-80. The United States of America and the following eight

employees at USP-Lewisburg are named as defendants: Warden Bledsoe; Assistant

Warden Rear; Special Investigative Services (SIS) Lieutenant Fosnot; Physician

Assistant (PA) Hemphill; Paramedic Walls; Counselor Edinger; Correctional Officer

Hawk; and Correctional Officer John Doe.

      In his complaint, Millbrook alleges the following: He has post-traumatic stress and

bipolar disorder and, prior to being transferred to USP-Lewisburg, he was sexually

assaulted by two correctional officers at USP-Terre Haute. After his arrival at USP-

Lewisburg, he was housed in the Special Management Unit (SMU), where he was

interviewed by two non-defendant prison officials, Captain Trate and SIS Perrin. He

explained to Trate and Perrin that he needed to be placed in protective custody, but was

told that there was no protective custody in the SMU. Thereafter, Millbrook was

assaulted by an unidentified cellmate on March 1, 2010, and was sexually assaulted by

Counselor Edinger and two unidentified correctional officers in the basement of the SMU
                                            2
on or about March 5, 2010. He was again assaulted by a USP-Lewisburg prisoner on or

about November 12, 2010, at the instigation of Correctional Officers Hess and Ross;

Assistant Warden Rear witnessed the assault.

       On or about the afternoon of May 12, 2011, Millbrook was physically attacked by

his cell mate, Pettus. Both he and Pettus had previously notified prison staff, including

Counselor Edinger, that they were not getting along. Counselor Edinger responded that

he would not separate the cell mates, that he didn’t care if they fought one another, and

that the prison had an “either fight or go in restraints” policy. Counselor Edinger told

him that he would either kill him or have him killed for being a snitch.

       Millbrook next alleges that Paramedic Walls and an unidentified correctional

officer physically and sexually assaulted him while performing a strip search in the SMU

shower immediately following the May 12, 2011 incident. The officials grabbed and

pulled his penis and tightly applied hand restraints. Officer Hawk subsequently denied

his request for medical treatment and failed to take any action in response to his

allegations of physical and sexual abuse; and PA Hemphill, Warden Bledsoe, Assistant

Warden Rear, and Lieutenant Fosnot failed to take appropriate action with respect to the

misconduct of Officers Walls and Hawk.

       Millbrook seeks relief under Bivens with regard to all allegations, and relief under

the FTCA for the May 12, 2011 sexual assault by Paramedic Walls. Millbrook also




                                             3
requests punitive and compensatory damages.1

       In April 2013, the defendants filed a motion to dismiss and for summary

judgment. The District Court granted summary judgment in favor of the individual

defendants with regard to all Bivens claims, but permitted the FTCA claim against the

Government to continue.2 Millbrook was appointed counsel, and the parties consented to

proceed before a Magistrate Judge for trial.

       Following a non-jury trial, the Magistrate Judge determined that Millbrook had

failed to prove by a preponderance of the evidence that Officer Frederick3 acted

negligently in failing to respond to the alleged sexual assault on Millbrook by Paramedic

Walls because there was insufficient evidence that any such assault occurred. Nor was

there sufficient evidence that Paramedic Walls exceeded the bounds of privileged contact

required to undertake a medical assessment.4 Millbrook appeals.


1
  Simultaneously with his complaint, Millbrook filed a motion for preliminary injunctive
relief, requesting placement in protective custody and/or placement in a single cell. The
District Court denied relief on February 13, 2013, concluding that Millbrook had not
“sufficiently shown that there is a likelihood that he will prevail on the merits,” and that
he had “equally failed to demonstrate a likelihood that he will suffer irreparable harm if
not granted immediate relief.”
2
 Because the defendant’s motion was supported by evidentiary materials outside the
pleadings, the District Court treated their motion as seeking summary judgment. See
Hilfirty v. Shipman, 91 F.3d 573, 578-79 (3d Cir. 1996).
3
 Officer Frederick was initially listed as Correctional Officer John Doe in Millbrook’s
complaint, but was identified prior to trial.
4
  Following the non-jury trial but prior to the entry of final judgment, Millbrook filed a
letter with the District Court seeking a new trial pursuant to Federal Rule of Civil
                                               4
                                              II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Because Millbrook has been

granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we review this appeal for

possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We may summarily affirm

under Third Circuit LAR 27.4 and I.O.P. 10.6 if the appeal lacks substantial merit. We

exercise plenary review over a district court order for summary judgment. Giles v.

Kearney, 571 F.3d 318, 322 (3d Cir. 2009). Summary judgment is appropriate “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). The moving party “bears

the initial responsibility of informing the district court of the basis for its motion, and

identifying those portions” of the record which demonstrate the absence of a genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the

moving party meets its burden, the nonmoving party then must present specific facts that

show there is a genuine issue for trial. Fed. R. Civ. P. 56(c)(1), (e)(2); Anderson v.

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




                                              III.


Procedure 60(b). The District Court denied the motion as meritless, but without
prejudice to Millbrook’s renewing his motion for a new trial after the final judgment had
been entered. Millbrook did not renew his motion.

                                               5
       We address matters that are relatively straightforward first. We agree with the

District Court that PA Hemphill is entitled to statutory immunity with respect to

Millbrook’s claim that following the altercation with inmate Pettus, PA Hemphill

examined him but acted with deliberate indifference to his need for medical treatment

and failed to report the sexual assault. Under the Public Health Service Act, 42 U.S.C. §

233(a), members of the Public Health Service are absolutely immune from suit in a

Bivens action if the injury for which compensation is sought is the result of a medical or

related function while acting within the scope of the member’s employment. See Cuoco

v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000).5 It is undisputed that PA Hemphill is a

commissioned officer of the Public Health Service, and that the claims against him are

based on actions he took while acting within the scope of his employment.6

       With regard to defendants Warden Bledsoe, Counselor Edinger, PA Hemphill,

Paramedic Walls, Lieutenant Fosnot, and Officer Hawk, Millbrook has failed to allege

that they were personally involved in the March 1, 2010 and November 12, 2010

incidents. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (holding each


5
 The Federal Tort Claims Act is the exclusive remedy for specified actions against
members of the Public Health Service. See 42 U.S.C. § 233(a).
6
  The District Court properly dismissed defendant unknown correctional officer from the
Bivens portion of this action because Millbrook had failed to provide the District Court
with the identity of the John/Jane Doe defendant despite having initiated the action some
two years prior. See Hindes v. F.D.I.C., 137 F.3d 148, 155 (3d Cir. 1998) (“The law is
clear that ‘[f]ictitious parties must eventually be dismissed, if discovery yields no
identity.’”).

                                             6
named defendant must be shown to have been personally involved in events which

underlie claims). Millbrook states that before the March 1, 2010 incident, he told Captain

Trate and SIS Perrin that he needed to be placed in protective custody, but they are not

named defendants.7 Similarly, although Millbrook claims that the November 12, 2010

attack was “set-up” by Officers Hess and Ross and witnessed by Assistant Warden Rear,

Officers Hess and Ross are not named defendants in this action.

       Concerning Warden Bledsoe, Millbrook alleges only that he told Bledsoe on May

12, 2011, that he had been assaulted by prison staff and that Bledsoe failed to take any

action. Millbrook also asserts a claim of supervisory liability against Bledsoe. While

Bledsoe was clearly employed in a supervisory capacity at USP-Lewisburg, Millbrook

has not alleged that Bledsoe directed or condoned any violations of Millbrook’s

constitutional rights. As a result, Bledsoe was entitled to summary judgment on this

claim. See Rode, 845 at 1207.8

                                            IV.




7
 Millbrook also alleges that he was sexually assaulted by Counselor Edinger and two
non-defendants on March 5, 2010, in the basement of the SMU. We agree with the
District Court that this allegation adequately alleges personal involvement by Counselor
Edinger. However, the District Court subsequently joined this Bivens claim against
Counselor Edinger to an FTCA case that Millbrook had previously filed because the
pending claim against Counselor Edinger stems from the same incident underlying
Millbrook’s FTCA action, and the surviving FTCA claim in this matter is unrelated.
8
 Summary judgment is likewise appropriate with respect to any claims against Bledsoe
based on his responses or non-responses to any administrative grievances or complaints.
                                            7
       The Prison Litigation Reform Act (PLRA) prohibits an inmate from bringing a

civil rights suit alleging unconstitutional conduct by prison officials “until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The

defendants concede that Millbrook properly exhausted his administrative remedies

regarding “his [Bivens] claims relative to the March and November incidents,” as well as

an administrative tort claim regarding the May 2011 incident. However, they argue that

Millbrook did not administratively exhaust his Bivens failure to protect, deliberate

indifference, and retaliation claims related to the events of May 12, 2011.

       Defendants submitted a declaration by USP-Lewisburg Attorney Advisor Michael

Romano which states that, based on a review of the BOP’s computerized records,

Millbrook initiated three requests for administrative relief. However, none of the filings

mentioned the May 2011 allegations. Millbrook acknowledges that he failed to exhaust

these Bivens claims but asserts that he was hindered from filing administrative grievances

by prison officials. We agree with the District Court that Millbrook’s contention is belied

by the fact that he was able to exhaust an administrative tort claim stemming from the

same May 2011 incident. Accordingly, summary judgment was appropriate with respect

to all Bivens claims regarding the May 2011 incident.9


9
  We agree with the District Court that, contrary to the defendants’ assertions,
Millbrook’s claims relating to the events of March 1 and March 5, 2010 are not precluded
from consideration as being untimely raised under Pennsylvania’s two-year statute of
limitations as Millbrook would be entitled to tolling of the statute of limitations pending
his administrative exhaustion of those claims. See Johnson v. Rivera, 272 F.3d 519, 522
(7th Cir. 2001); Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000).
                                             8
                                              V.

       Millbrook raises several Bivens claims regarding the November 12, 2010 incident.

He alleges that this attack by an unidentified USP-Lewisburg prisoner was organized by

Officers Hess and Ross and witnessed by Assistant Warden Rear. Because Hess and

Ross are not named defendants, we agree with the District Court that “the only viable

allegation is that Defendant Rear failed to protect [Millbrook’s] safety.”

       A prison official cannot be found liable under the Eighth Amendment for failure to

protect an inmate unless the official subjectively knew of and chose to disregard a

substantial risk of serious harm to an inmate’s health or safety. See Farmer v. Brennan,

511 U.S. 825, 837 (1994). However, negligence is insufficient to support a claim that

prison official failed to protect the inmate. Id. at 835. A correctional officer’s failure to

intervene when a prisoner is being physically assaulted by another prison official can be

the basis of liability for an Eighth Amendment violation “if the corrections officer had a

reasonable opportunity to intervene and simply refused to do so.” See Smith v.

Mensinger, 293 F3d. 641, 650-51 (3d Cir. 2002). Here, Millbrook failed to provide

sufficient facts regarding the event, such as the identity of his assailant or the exact date

of the incident.10 Nor does he offer any facts which could support a claim that Assistant




10
  In his opposing summary judgment brief, he asserts for the first time that the sexual
assault Assistant Warden Rear witnessed actually occurred in September 2010.
                                           9
Warden Rear had a reasonable opportunity to protect him, but failed to take any action.

As a result, summary judgment was properly granted for this claim.

                                             VI.

       We now turn to Millbrook’s remaining FTCA claim which proceeded to trial.

Millbrook alleges that, following the May 2011 altercation with inmate Pettus, Paramedic

Walls and Correctional Officer Frederick removed Millbrook to the third floor shower

area for a medical assessment. Millbrook claims Paramedic Walls committed battery by

removing his boxer shorts, grabbing his penis, and pulling on it; and Officer Frederick

was negligent for failing to respond to the alleged assault.

       We exercise plenary review over the District Court’s legal conclusions, and review

the District Court’s factual findings for clear error. Lansing v. Se. Pa. Transp. Auth., 308

F.3d 286, 290 (3d Cir. 2002). Under Pennsylvania law, an individual commits a battery

when he or she intentionally causes a harmful or offensive contact with another person’s

body. Cooper v. Lankenau Hosp., 51 A.3d 183, 191–92 (Pa. 2012). However, the

incidental and necessary touchings by correctional officers of inmates in the performance

of their duties are not batteries, but are privileged contacts. See Restatement (Second) of

Torts’s 132, Comment b (1965). In order to establish a claim of 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 of damage resulting to the plaintiff.” Farabaugh v.

Pa. Tpk. Comm’n, 911 A.2d 1264, 1272-73 (Pa. 2006).
                                             10
       Here, the District Court found that, as part of the prison investigation, PA

Hemphill had conducted a medical assessment of Millbrook on May 13, 2011, and found

no signs of bruising or injury to his penis. The District Court also found the

Government’s theory – that Millbrook has a long history of bringing sexual assault

allegations against other BOP staff members and inmates as a way to potentially

manipulate his cell assignments – 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. Moreover, Millbrook has failed to produce any evidence, aside from his own

testimony, that the incident ever occurred, much less that he sustained injury to his

genitals. Accordingly, we find no clear error in the District Court’s conclusion that

Millbrook failed to prove by a preponderance of evidence that Paramedic Walls had

committed the intentional tort of battery by allegedly grabbing and pulling on

Millbrook’s genitals or that Officer Frederick acted negligently in failing to respond to

the alleged sexual assault.

                                             VII.

       We conclude that there is no substantial question presented by this appeal, and will

thus summarily affirm the judgment of the District Court. Millbrook’s motion for

appointment of counsel is denied.




                                              11
