ALD-096                                                     NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 13-1507
                                  ___________

                              KIM MILLBROOK,
                                         Appellant

                                        v.

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

                 On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                        (M.D. Pa. Civil No. 3-12-cv-00421)
                 District Judge: Honorable William J. Nealon, Jr.
                  ____________________________________

      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
                               December 12, 2013
      Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

                         (Opinion filed: January 2, 2014)
                                   _________

                                   OPINION
                                   _________

PER CURIAM
       Kim Millbrook, a federal prisoner proceeding pro se, appeals an order of the

United States District Court for the Middle District of Pennsylvania denying his motion

for a preliminary injunction. For the reasons that follow, we will affirm the District

Court’s order.

       Millbrook filed a complaint against employees of the United States Penitentiary in

Lewisburg, Pennsylvania pursuant to Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C.

§§ 1346(b), 2671-80. Millbrook, who is housed in the Special Management Unit, alleged

that he told prison staff that he was not safe there because gang members had “a hit out

on him.” Compl. at 6. Millbrook averred that his cellmate assaulted him on March 1,

2010, and that three correctional officers sexually assaulted him on or about March 5,

2010. He also alleged that an inmate sexually assaulted him on November 12, 2010, that

two correctional officers set up the attack, and that the Assistant Warden witnessed it.

Millbrook further alleged that another cellmate attacked him on May 12, 2011, and that a

paramedic and a correctional officer physically and sexually assaulted him after the

attack. Millbrook claimed violations of his First and Eighth Amendment rights and

sought compensatory and punitive damages.

       Based on these allegations, Millbrook also filed a motion for a preliminary

injunction seeking placement in protective custody or a single cell. The United States

opposed the motion and asserted that Millbrook’s allegations of sexual abuse had been

investigated and were determined to be unfounded. The United States also noted that

Millbrook had a new cellmate and that they had been living together without incident.

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The District Court denied Millbrook’s motion for a preliminary injunction and this appeal

followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). Our standard of review

is narrow. Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 562 F.3d 553, 556 (3d Cir.

2009). “Unless an abuse of discretion is ‘clearly established, or an obvious error has

ocurred [sic] in the application of the law, or a serious and important mistake has been

made in the consideration of the proof, the judgment of the trial court must be taken as

presumptively correct.’” Id. (citations omitted).

       As recognized by the District Court, in determining whether a preliminary

injunction should be issued, a court must consider the likelihood that the moving party

will succeed on the merits, the extent to which the moving party will suffer irreparable

harm if an injunction is not granted, the extent to which the nonmoving party will suffer

irreparable harm if an injunction is issued, and the public interest. Id.

       In concluding that Millbrook had not sufficiently shown a likelihood of success on

the merits of his complaint, the District Court explained that the defendants had

submitted factual material attacking the credibility of Millbrook’s claims of being

subjected to multiple assaults. The District Court stated that Millbrook had raised claims

of sexual abuse by other inmates and staff at USP-Lewisburg and his former place of

imprisonment and that internal investigations had found his claims unsupported. The

District Court noted that Millbrook has mental health issues for which he takes

medication. The District Court also concluded that Millbrook had not shown that he

would likely suffer irreparable harm absent relief and noted that his complaint, filed in

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March 2012, was based on incidents that had allegedly occurred from March 2010 to

May 2011.

       The record reflects that there were internal investigations into Millbrook’s

allegations that he was sexually abused on July 8, 2009 by prison staff at his prior place

of confinement, on March 4, 2010 and May 12, 2011 by prison staff at USP-Lewisburg,

and on September 19, 2010 by an inmate at USP-Lewisburg. In each case, Millbrook’s

allegations were found unsubstantiated. Millbrook also submitted a copy of his

disciplinary record, which reflects a history of fighting with other inmates and assaultive

behavior. Based on this evidence, we agree with the District Court that Millbrook has not

shown a likelihood of success on the merits of his complaint.

       We also agree with the District Court that Millbrook has not shown, based on the

allegations in his complaint, that he would suffer irreparable harm absent relief. See

Acierno v. New Castle County, 40 F.3d 645, 655 (3d Cir. 1994) (noting requirement of a

“clear showing of immediate irreparable injury”). We recognize that Millbrook

submitted evidence of two more incidents that allegedly occurred after he filed his

complaint. He attested, and provided corroborating affidavits from two inmates, that in

July 2012 he was attacked by his cellmate and staff failed to respond, and that in October

2012 prison staff ordered another inmate to start an altercation with him. The

government submitted evidence disputing that an attack occurred in July 2012 and

reflecting that Millbrook had attacked his cellmate in October 2012. These submissions

reflect that Millbrook has been involved in additional altercations from time to time and



                                             4
that the parties dispute the circumstances. This evidence is insufficient to establish that

Millbrook will suffer immediate irreparable injury absent an injunction.

         Accordingly, because this appeal does not raise a substantial question, we will

summarily affirm the judgment of the District Court.1




1
    Millbrook’s motion for appointment of counsel is denied.
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