High Court Takes Up Claim of Inmate Assault

     WASHINGTON (CN) – A man who claims a trio of prison guards forced him to perform oral sex will get to bring his civil rights complaint to the Supreme Court.
     Kim Millbrook, an inmate the Lewisberg, Pa., federal penitentiary, claims that three guards subjected him to sexual and verbal assault on March 5, 2010.
     The guards allegedly led Millbrook to the basement of the special management unit for the attack. Millbrook says one guard held him by the neck to make him perform oral sex on a second guard, while a third guard stood watch by the door.
     In its defense, the U.S. government said that Millbrook’s claim was found to be unsubstantiated in an internal investigation, which included a medical assessment.
     It also noted that the alleged attack occurred one day after Millbrook had fought with his cellmate, an altercation that led the prison to restrain Millbrook and seclude him for injury assessment.
     A federal judge granted the U.S. government summary judgment in 2011, and the 3rd Circuit affirmed in April 2012.
     Both courts called the alleged conduct of the guards “troubling,” but they said that circuit precedent established in 1986 with Pooler v. United States precluded Millbrook’s claim under the Federal Tort Claims Act (FTCA).
     In Pooler, the circuit limited claims that arise under Section 2680(h) of the FTCA “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,” according to its April summary.
     The court said Pooler limited the term “seizure” to the seizure of evidence, without leaving room for the alleged unconstitutional seizure of a person, which would cover the allegation that the guards handcuffed Millbrook and brought him to the basement.
     In granting Millbrook a writ of certiorari on Tuesday, the Supreme Court limited its consideration to one question: “whether 28 U.S.C §§1346(b) and 2680(h) waive the sovereign immunity of the United States for the intentional torts of prison guards when they are acting within the scope of their employment but are not exercising authority to ‘execute searches, to seize evidence, or to make arrests for violations of federal law.'”
     The court also granted Millbrook leave to proceed in forma pauperis.

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