Millbrook V United states Elements and Key Facts
Legal Research and Writing II
Instructor: Leah Westerman
Everest Online University
Friday, April 26, 2013
. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
Step 1 Identify each type of cause of action:
On January 18, 2011, Millbrook filed suit against the United States under the FTCA, asserting claims of negligence, assault, and battery. In his complaint, Millbrook alleged that, on March 5, 2010, he was forced to perform oral sex on a BOP correctional officer, while another officer held him in a choke hold and a third officer stood watch nearby.
Step 2 determine the elements of each cause of action as defined by the online legal dictionary:
* Negligence- the failure to exercise that degree of care that, in the circumstances, the law requires for the protection of other persons or those interests of other persons that may be injuriously affected by the want of such care.
Assault- an unlawful physical attack upon another; an attempt or offer to do violence to another, with or without battery, as by holding a stone or club in a threatening manner.
Battery-A battery is any physical contact with another person, to which that person has not consented. Willful and unlawful use of force or violence upon the person of another.
Step 3 Determine the key fact
* The alleged sexual assault took place while Millbrook was serving time in a penal facility.
* Allegedly one correction officer held Millbrook in a choke hold while he was forced to perform oral sex on another correction officer. A third correction officer was witness to the attack while he watched out.
* Court of appeals rendered their decision on the Act of Mar. 16, 1974, Pub. L. 93–253, §2, 88 Stat. 50. Known as the “law enforcement proviso,” this provision extends the waiver of sovereign immunity to claims for six intentional torts, including assault and battery,...