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Justices to decide if U.S. is immune in assault, medical malpractice suits

The U.S. Supreme Court will decide whether the federal government is immune from tort liability for the alleged sexual assault of a prison inmate by correctional officers that occurred outside the scope of an arrest, search or seizure.

The petitioner, Kim Lee Millbrook, alleges that he was forced to perform a sex act on a correctional officer while incarcerated at the federal prison in Lewisburg, Pa.

Section 2680(h) of the FTCA generally provides that the U.S. is not liable for intentional torts of its employees except for certain intentional torts committed by investigative or law enforcement officers.

The 3rd U.S. Circuit Court of Appeals had previously limited the intentional-tort waiver to situations in which an officer was executing a search, seizing evidence or making arrests.

To the extent that Millbrook “alleges that handcuffing and taking him to the basement of the [prison to be assaulted] amounts to an unconstitutional seizure, we agree with the District Court that [circuit precedent] limits the term ‘seizure’ to the seizure of evidence,” the 3rd Circuit held. “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. Thus, we agree with the District Court that while the alleged conduct is troubling, [the plaintiff] has not shown that he is entitled to relief under the FTCA.”

The case is No. 11-10362.

The petition is one of two the court granted Tuesday involving pro se petitioners.

In the other case, the court will consider whether the government can be sued for improper actions by military medical personnel on the job.

Steven Alan Levin, filing from Guam, seeks the right to pursue his claims for medical malpractice and battery after unsuccessful cataract surgery in March 2003 at the United States Naval Hospital in Guam. Levin said he withdrew his consent for the surgery before the operation began but doctors proceeded anyway. Levin suffered complications, which require ongoing treatment.

Levin’s case is 11-1351. The court is expected to decide both cases during the term that begins next month.

The Associated Press contributed to this report.

Lawyers USA is a sister publication of The Daily Record.