Millbrook v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KIM MILLBROOK, :

Plaintiff : CIVIL ACTION NO. 3:23-CV-261

V. : (JUDGE MANNION)

UNITED STATES OF AMERICA, ~ : SCRANTON

Defendants : AUG 08 2024

MEMORANDUM Perf)

Presently before the court in this prisoner civil rights case is

defendant’s motion to dismiss or, alternatively, motion for summary

judgment. For the reasons set forth below, the motion will be treated as a

motion for summary judgment and granted.

I. BACKGROUND

Plaintiff, Kim Millbrook, who is currently housed in Davenport Work

Release Center in Davenport, lowa, but was incarcerated in USP-Canaan in

Waymart, Pennsylvania at all relevant times, brings the instant case

pursuant to the Federal Tort Claims Act (“FTCA”), alleging that officials at

USP-Canaan committed the torts of assault, battery, and negligence during

his incarceration at that institution. (Doc. 1). The complaint asserts three

claims for FTCA relief: (1) that officials committed assault and battery by

applying handcuffs that were too tight on February 28, 2022; (2) that officials

committed assault, battery, and negligence by failing to wear masks or

properly socially distance during the COVID-19 pandemic; and (3) that

several officials assaulted Millbrook on an unspecified date by pepper

spraying him, punching him, and kicking him. (/d. at 9-10).

On August 11, 2023, defendant’ filed a motion to dismiss the

complaint, or, alternatively, for summary judgment. (Doc. 19). Defendant

filed a brief in support of the motion and a statement of material facts as

required by Local Rule 56.1 on August 24, 2023, and August 25, 2023,

respectively. (Docs. 21-22). Millbrook filed a brief in opposition to the motion,

a declaration, and a statement of material facts responding to defendant’s

statement on September 19, 2023. (Docs. 27-29). Defendant filed a reply

brief on October 3, 2023, making the motion ripe for the court’s review. (Doc.

31).

Il. ©§THE MOTION WILL BE TREATED AS A MOTION FOR SUMMARY JUDGMENT

At the outset, the court clarifies that it will treat defendant’s instant

motion as a motion for summary judgment pursuant to Federal Rule of Civil

Procedure 56 rather than as a motion to dismiss pursuant to Federal Rule of

1 The United States is the only proper defendant in an FTCA action and is

therefore the only defendant in this case. See CNA v. United States, 535

F.3d 132, 138 n.2 (3d Cir. 2008).

Civil Procedure 12. Although district courts must ordinarily provide notice and

an opportunity to respond before treating a motion to dismiss as a motion for

summary judgment, the filing of a motion alternatively as either a motion to

dismiss or a motion for summary judgment ordinarily constitutes sufficient

notice that the court may treat the motion as one for summary judgment such

that no additional notice or opportunity to respond is necessary. Hilfirty v.

Shipman, 91 F.3d 573, 578-79 (3d Cir. 1996), abrogation in nonrelevant part

recognized in Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 792 n.11 (3d

Cir. 2000).

Moreover, the United States Court of Appeals for the Third Circuit has

held on numerous occasions that additional notice is not required to treat a

motion as a motion for summary judgment where the nonmovant’s response

to the motion indicates a subjective understanding that the motion may be

treated as a motion for summary judgment. See, e.g., Davis v. Phelan

Hallinan & Diamond PC, 687 F. App’x 140, 143 (3d Cir. 2017) (“Because

Davis demonstrated that he knew materials beyond the pleadings were

before the Court and he indeed urged the District Court to treat the motion

to dismiss as one for summary judgment, it is clear that he had the requisite

notice of the conversion.”); McDaniels v. N.J. Div. of Youth & Family Servs.,

144 F. App’x 213, 216 (3d Cir. 2005) (additional notice not required where

nonmovant’s response referred to the motion as one for summary judgment

and referred to summary judgment in the body of the response); Carver v.

Plyer, 115 F. App’x 532, 536 (3d Cir. 2004) (noting that nonmovant’s

response to motion indicated subjective awareness that the motion could be

treated as a summary judgment motion where the response referred to the

motion as a motion for summary judgment, included the legal standard for

summary judgment, and referred to exhibits outside of the pleadings).

Millbrook’s status as a pro se prisoner does not alter this analysis. See, e.g.,

Jones v. Hashagen, 512 F. App’x 179, 181 (3d Cir. 2013) (holding that

additional notice was not required to treat motion as motion for summary

judgment because nonmovant, a pro se prisoner plaintiff, repeatedly referred

to the motion as a motion for summary judgment and referred to evidence

outside the pleadings in his response to the motion).

Millbrook’s response to defendant’s motion clearly shows that he has

subjective understanding that the motion may be treated as a motion for

summary judgment and that he has received sufficient notice of that fact. His

brief is titled, “Plaintiff's Opposition to Defendant’s Motion to Dismiss and for

Summary Judgment,” (Doc. 27 at 1), the brief repeatedly refers to summary

judgment, (see id. at 3, 6, 13), and the brief cites the legal standard

applicable to motions for summary judgment. (see id. at 6). Millbrook has

also filed a statement of material facts in response to defendant's statement

of material facts, as the Local Rules require for all responses to motions for

summary judgment. (Doc. 29); see also M.D. L.R. 56.1. Hence, the court will

treat the motion as a motion for summary judgment because it is clear from

Millbrook’s response to defendant's motion that no further notice or

opportunity to respond to the motion is necessary before the court may do

so. The court accordingly turns its attention to the material facts.

Ill. | MATERIAL FAcTS?

Millbrook was incarcerated in USP-Canaan on a federal writ from

February 22, 2022, to April 5, 2022. (Doc. 22 3; Doc. 29 ¥J 3). Upon his

arrival in the facility, prison staff performed an initial medical screening on

him. (Doc. 22 J 8; Doc. 29 J 8). The screening showed that Millbrook had

? As required by Local Rule 56.1, Defendant has filed a statement of material

facts. (Doc. 29). Rule 56.1 also requires that the party opposing a motion for

summary judgment file a statement responding to the numbered paragraphs

in the movant's statement of material facts, which “shall include references

to the parts of the record” that supports the nonmovant’s opposition to the

motion. L.R. 56.1. Millbrook has filed a response to defendant’s statement

as required by Local Rule 56.1, but his statement does not cite any record

evidence and instead simply states in conclusory fashion that he “disputes”

several factual assertions offered by defendant. (See, e.g., Doc. 29 J 14).

Because this conclusory and unsupported assertion does not properly

controvert defendant's assertions of fact, the court will treat any assertion to

which Millbrook has given this response as undisputed for purposes of the

instant motion. The court will additionally cross reference this footnote when

doing so for ease of reference. The court will otherwise cite the statements

of material facts directly as to any undisputed facts.

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previously been vaccinated against COVID-19 and that he did not have any

symptoms of COVID-19. (/d.) Staff members also tested Millbrook for

COVID-19 as part of the screening. (Doc. 22 J 9; Doc. 29 J] 9). The test was

negative for the virus. (/d.)

After the initial screening, Millbrook attended a physician evaluation

with Dr. Chu, a physician in the prison, on March 8, 2022. (Doc. 22 Ff 17-

18; Doc. 29 Jf] 17-18). Millbrook did not complain of COVID-19 symptoms or

any other abnormalities during the evaluation. (Doc. 22 {| 21; Doc. 29 ¥ 21;

supra note 2).

On March 15, 2022, Millbrook had a follow-up appointment with Dr.

Chu regarding his seborrheic dermatitis and unspecified psoriasis. (Doc. 22

q 25; Doc. 29 J 25; supra note 2). Dr. Chu conducted a physical examination

and noted no abnormalities. (Doc. 22 J 28; Doc. 29 J 28; supra note 2).

On March 22, 2022, Millbrook had a follow-up visit with Physician's

Assistant Carey for a blood pressure check. (Doc. 22 J 31; Doc. 29 ff 31).

Millbrook reported that he was “doing well” and did not complain of COVID-

19 or any other conditions. (Doc. 22 Jf] 32-33; Doc. 29 {IJ 32-33; supra note

2). Carey noted that Millbrook appeared well, alert, and oriented. (Doc. 22 {|

34; Doc. 29 J 34; supra note 2).

On April 4, 2022, prison medical staff examined Millbrook in

preparation for his transfer out of USP-Canaan. (Doc. 22 | 36; Doc. 29 □□ 36;

supra note 2). Millbrook did not complain of any conditions and specifically

denied that he was experiencing body aches, loss of taste or smell, or

headaches. (Doc. 22 J 37; Doc. 29 J 37; supra note 2). Millbrook was tested

for COVID-19, and the test was negative. (Doc. 22 {| 38; Doc. 29 {J 38; supra

note 2). Millbrook again tested negative for COVID-19 on April 5, 2022. (Doc.

22 J 39; Doc. 29 J 39; supra note 2).

IV. STANDARD OF REVIEW

Summary judgment is appropriate “if the pleadings, the discovery

[including, depositions, answers to interrogatories, and admissions on file]

and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp.,

901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable

jury could find for the non-moving party, and is material if it will affect the

outcome of the trial under governing substantive law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242 (1986); Aetna Cas. & Sur. Co. v. Ericksen, 903 F.

Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage, “the

judge's function is not himself to weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue for trial.”

Anderson, 477 U.S. at 249: see also Marino v. Indus. Crating Co., 358 F.3d

241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make

credibility determinations). Rather, the court must consider all evidence and

inferences drawn therefrom in the light most favorable to the non-moving

party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively

identify those portions of the record which demonstrate the absence of a

genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party

can discharge that burden by showing that “on all the essential elements of

its case on which it bears the burden of proof at trial, no reasonable jury could

find for the non-moving party.” /n re Bressman, 327 F.3d 229, 238 (3d Cir.

2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial

burden, the non-moving party “must do more than simply show that there is

some metaphysical doubt as to material facts,” but must show sufficient

evidence to support a jury verdict in its favor. Boyle v. County of Allegheny,

139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, if the non-moving

party “fails to make a showing sufficient to establish the existence of an

element essential to [the non-movant's] case, and on which [the non-movant]

will bear the burden of proof at trial,” Rule 56 mandates the entry of summary

judgment because such a failure “necessarily renders all other facts

immaterial.” Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman-La

Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

V. DISCUSSION

Defendant advances three arguments for summary judgment: (1) that

the court lacks subject matter jurisdiction over Millbrook’s FTCA claims

because Millbrook has not alleged any physical injuries or produced

evidence of physical injuries; (2) that the court lacks jurisdiction over

Millbrook’s COVID-19 claim under the discretionary function exception to the

FTCA; and (3) that Millbrook’s claims fail on their merits. (See Doc. 23).

The court will first analyze defendant’s argument that Millbrook has

failed to allege or show that he suffered any physical injuries as a result of

prison officials’ allegedly wrongful conduct. FTCA claims are only cognizable

in certain limited circumstances in which the United States has waived its

sovereign immunity from suit. 28 U.S.C. §1346(b); FDIC v. Meyers, 510 U.S.

471, 477 (1994). For an FTCA claim to be cognizable the claim must be (1)

“against the United States,” (2) “for money damages,” (3) “for injury or loss

of property, or personal injury or death,” (4) “caused by the negligent or

wrongful act or omission of any employee of the Government,” (5) while

acting within the scope of his office or employment,” and (6) “under

circumstances where the United States, if a private person, would be liable

to the claimant in accordance with the law of the place where the act or

omission occurred.” Meyers, 510 U.S. at 477 (quoting 28 U.S.C. §1346(b)).

Incarcerated individuals may not bring a claim under the FTCA “for mental

or emotional injury suffered while in custody without a prior showing of

physical injury or the commission of a sexual! act.” 28 U.S.C. §1346(b)(2).

The United States argues that it should be granted summary Judgment

on Millbrook’s FTCA claims for lack of jurisdiction because Millbrook has not

shown that he suffered any physical injuries. (Doc. 23 at 18-25). Defendant

notes that Millbrook has not produced any evidence that he suffered physical

injuries, and that Millbrook’s medical records contradict his assertions of

physical injuries because they show that he did not have COVID-19 and did

not complain of any physical injuries at any point during his incarceration at

USP-Canaan. (/d. at 23).

The court agrees that summary judgment is appropriate for Millbrook’s

failure to establish that he suffered any physical injury. The record shows

that Millbrook was incarcerated in USP-Canaan from February 22, 2022 to

April 5, 2022, and that during that approximately six-week period, he was

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seen for routine medical care on February 22, 2022, March 8, 2022, March

15, 2022, March 22, 2022, and April 4, 2022. (See Doc. 22; 22-2; Doc. 29;

supra note 2). At no time during any of these visits did Millbrook report any

physical injuries caused by a purported handcuffing incident, pepper

spraying incident, or assault and battery. (See id.) Millbrook also did not

report any COVID-19 symptoms during any of these visits, and all tests for

the virus during his incarceration in USP-Canaan were negative. (See id.)

The only contrary evidence Millbrook has produced to show that he

suffered a physical injury is his declaration in support of his motion for

summary judgment, wherein he asserts that the assault by prison officials on

an unspecified date caused him to experience “swollen head; eyes bruises;

[and] bruising all over [his] body.” (Doc. 28 at 5). In light of Millbrook’s failure

to report these injuries to medical officials during his numerous medical

appointments, the court concludes that Millbrook’s conclusory and

unsupported assertion amounts to a mere ‘“scintilla” of evidence that is

insufficient to create a genuine issue of material fact. See Anderson, 477

U.S. at 252 (“The mere existence of a scintilla of evidence in support of the

plaintiff's position will be insufficient [to deny summary judgment]; there must

be evidence on which the jury could reasonably find for the plaintiff.”). Hence,

because there is insufficient evidence in the record for a reasonable finder

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of fact to conclude that Millbrook suffered any physical injury in relation to his

putative FTCA claims, summary judgment for lack of subject matter

jurisdiction is appropriate.®

VI. CONCLUSION

For the foregoing reasons, the court will grant defendant’s motion for

summary judgment, dismiss the complaint without prejudice for lack of

subject matter jurisdiction, and close this case. An appropriate order shall

issue.

United States District Judge

Dated: t/t

3 Even assuming the court had jurisdiction, the lack of evidence that

Millbrook suffered any physical injuries would also be cause to grant

summary judgment on the merits of his FTCA claims.

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