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Amicus brief defending a federal prisoner’s right to sue the U.S. government after sexual assault by a prison guard.


Following a sexual assault by a prison staff member and threats against him, Kim Millbrook was transferred in March 2010 from the federal prison in Terre Haute, Ind., to another facility in Lewisburg, Pa., according to court papers filed by him. He claims that after he told Lewisburg prison authorities of his history and need for protection, he was placed with violent cellmates who attacked him within days of his arrival. Millbrook claims that an officer brought him to an underground area outside the range of security cameras, where one officer held him in a chokehold and another forced Millbrook to perform oral sex, while a third stood watch. The officers threatened to kill him if he told anyone of the assault, he says.

In January 2011, Millbrook sued the U.S. government in federal court. Both the District Court and the Third Circuit Court of Appeals concluded that Millbrook’s suit was barred under the Federal Tort Claims Act. The law provides a path to sue the federal government if a federal law enforcement officer commits an assault or battery on the job.

In the brief filed on December 7, 2012, Lambda Legal argues that Millbrook’s claim is valid and that the immunity waiver for law enforcement officers is in place to protect people from this kind of abuse of power. When Congress unanimously enacted the Prison Rape Elimination Act in 2003, it recognized that inmates are being sexually assaulted by prison officers and other inmates at alarming rates, and that such abuse is sometimes used to threaten and control inmates. Because of this abuse of power, it is critical for inmates to have access to the courts to protect their rights.