Brown v. Dept. of Health & Human Svs. et al

Filing 16

MEMORANDUM AND ORDER that Brown's retaliation claims against Strong and Mastny in their official capacities may proceed to service of process. All other claims against all other Defendants are dismissed without prejudice to reassertion in an amended complaint. To obtain service of process on Strong and Mastny, Brown must complete and return the summons forms that the Clerk of the Court will provide. The Clerk of the Court shall send two summons forms and two USM-285 forms to Brown tog ether with a copy of this Memorandum and Order. Brown shall, as soon as possible, complete the forms and send the completed forms back to the Clerk of the Court. Upon receipt of the completed forms, the Clerk of the Court will sign the summons form s, to be forwarded with a copy of Brown's Complaint and the two Supplements to the Complaint to the United States Marshal for service of process. The Clerk of the Court is directed to set a pro se case management deadline in this case with the following text: April 2, 2015: Check for completion of service of summons. Brown's request for a temporary restraining order is denied without prejudice to reassertion. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party with forms as directed) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CORNELIUS BROWN,
Plaintiff,
v.
DEPT. OF HEALTH & HUMAN
SVS., et al.,
Defendants.

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8:14CV298

MEMORANDUM
AND ORDER

Plaintiff Cornelius Brown (“Brown”) filed his Complaint (Filing No. 1) in this
matter on September 30, 2014. This court has given Brown leave to proceed in forma
pauperis. The court now conducts an initial review of Brown’s Complaint to
determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Brown, a black male, is confined to inpatient treatment at the Norfolk Regional
Center (“NRC”) in Norfolk, Nebraska. He named as Defendants five individuals
employed at the NRC including TiLinn Bouer, Chris Simmons, John Kroll, Lori
Strong, and Dianna Mastny. (Filing No. 1 at CM/ECF pp. 3-4.) He also named the
Nebraska Department of Health and Human Services (“NDHHS”) and a fellow
inpatient (hereinafter referred to as “M.P.”) as Defendants. (Id.)
On June 28, 2014, another patient at the NRC used racially derogatory
language in Brown’s presence and Strong failed to “offer any redirection to the
patient.” (Id. at CM/ECF p. 2.) On June 30, 2014, two patients used racially
derogatory language in Brown’s presence and Mastny failed to redirect the patients.
In addition, Mastny advised Brown that he needed “to learn to get over it.” (Id.) On
July 21, 2014, M.P. used racially derogatory language toward Brown, and Brown

responded by saying “f--k you motherf---er.” (Id.) Following the incident on July 21,
Brown was immediately disciplined. Brown did not specify how he was disciplined
or whether any of the named Defendants were involved in disciplining him.
Brown generally alleged in the Complaint that Kroll and Simmons were
responsible for failing to address patients’ racially derogatory language. However,
Brown did not offer any specific allegations with respect to his claims against Kroll
and Simmons. (Id. at CM/ECF p. 3.)
Brown grieved the above incidents to Bouer, who is the “facility operating
officer” at the NRC. She did not address his concerns. (Id. at CM/ECF pp. 2-3.)
Brown separately alleged that he complained to NDHHS about the lack of
programming at the NRC to “contribute to the African American culture,” and
NDHHS officials did not respond to his complaints. (Id. at CM/ECF pp. 4-5.)
Brown filed two Supplements (Filing Nos. 14 and 15) to his Complaint on
November 4 and December 2, 2014. Brown alleged in these pleadings that, upon
learning of his Complaint in this matter, Strong and Mastny retaliated against him by
taking steps to ensure that he could not advance in his sex offender treatment
program.
As relief in this matter, Brown seeks money damages and also asks to be
moved out of the NRC. (Id. at CM/ECF pp. 3-5.)
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court
must dismiss a complaint or any portion thereof that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be granted, or that seeks
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monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.”). Regardless of whether a plaintiff is represented or is
appearing pro se, the plaintiff’s complaint must allege specific facts sufficient to state
a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However, a pro
se plaintiff’s allegations must be construed liberally. Burke v. North Dakota Dep’t
of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).
Liberally construed, Plaintiff here alleges federal constitutional claims. To
state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights
protected by the United States Constitution or created by federal statute, and also
must show that the alleged deprivation was caused by conduct of a person acting
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow,
997 F.2d 494, 495 (8th Cir. 1993).
III. DISCUSSION OF CLAIMS
A.

Sovereign Immunity

The Eleventh Amendment bars claims for damages by private parties against
a state, state instrumentalities and an employee of a state sued in the employee’s
official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th
Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir.
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1995). Any award of retroactive monetary relief payable by the state, including for
back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of
immunity by the state or an override of immunity by Congress. See, e.g., id.; Nevels
v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981). Sovereign immunity does not bar
damages claims against state officials acting in their personal capacities, nor does it
bar claims brought pursuant to 42 U.S.C. §1983 that seek equitable relief from state
employee defendants acting in their official capacity.
Brown has sued state employees and has requested monetary relief. Brown did
not specify the capacity in which Defendants were to be sued. Thus, the court will
assume the state-official Defendants have been sued in their official capacities only.
Brown’s claims for monetary relief against Defendants in their official capacities are
barred by the Eleventh Amendment.
B.

Failure to Redirect Patients

Brown alleged Strong, Mastny, Simmons, and Kroll failed to “redirect” patients
who used racially offensive language. (Filing No. 1 at CM/ECF pp. 1-2.) These
allegations do not state a constitutional claim upon which relief may be granted.
The state, and its officials, have a duty imposed by the Substantive Due Process
Clause of the Fourteenth Amendment to provide a “reasonably safe environment” for
individuals involuntarily confined in a state mental health facility. Elizabeth M. v.
Montenez, 458 F.3d 779, 786 (8th Cir. 2006) (quoting Beck v. Wilson, 377 F.3d 884,
890 (8th Cir. 2004). “To recover under § 1983 for a breach of that constitutional
duty, a plaintiff must prove that a state official either intentionally violated the duty
(such as criminal assault by a staff member) or was deliberately indifferent to a
known excessive risk to patient safety (such as assault by another patient).” Id.

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Here, Brown’s allegations do not support a claim that state officials denied him
a reasonably safe environment. While Brown’s alleged exposure to racial slurs is
unfortunate, name calling and use of offensive language by another patient committed
to Brown’s facility does not state a claim of constitutional dimension. There are no
facts alleged to suggest officials were deliberately indifferent to a known risk to
Brown’s safety. Accordingly, Brown’s claims that Strong, Mastny, Simmons, and
Kroll failed to “redirect” patients who used racially derogatory language toward him
will be dismissed without prejudice.
C.

Failure to Respond to Grievances and Complaints

Brown alleged that he grieved various matters to Bouer and to NDHHS and
they failed to respond to his grievances and complaints. (Filing No. 1 at CM/ECF pp.
2-3, 4-5.) In order to bring suit under § 1983, a plaintiff must allege that a person
acting under color of state law deprived him of his constitutional rights. See West,
487 U.S. at 48. Brown’s allegations that Bouer and NDHHS merely failed to respond
to his correspondence does not state a violation of his constitutional rights. To the
extent Brown alleged Bouer’s failure to respond was a violation of NRC’s grievance
procedures, this is also not actionable under § 1983. See Merryfield v. Jordan, 431
Fed. App’x 743, 749 (10th Cir. 2011) (holding civilly-committed sex offender lacked
any federal constitutional right to an adequate grievance procedure); see also Lomholt
v. Holder, 287 F.3d 683, 684 (8th Cir. 2002); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993). Brown’s claims that Bouer and NDHHS failed to respond to his
complaints and grievances will be dismissed without prejudice.
D.

Retaliation

Brown alleged that following his filing of the Complaint in this matter, Strong
and Mastny retaliated against him by taking steps to ensure that he could not advance
in his sex offender treatment program. (Filing No. 15 at CM/ECF pp. 1-2.)
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To establish a § 1983 claim for retaliation in violation of the First
Amendment, a plaintiff must allege (1) that it engaged in a protected
activity, (2) that the defendants responded with adverse action that
would “chill a person of ordinary firmness” from continuing in the
activity, and (3) that “the adverse action was motivated at least in part
by the exercise of the protected activity.” Revels v. Vincenz, 382 F.3d
870, 876 (8th Cir. 2004).
L.L. Nelson Enter., Inc. v. Cnty. of St. Louis, Mo., 673 F.3d 799, 807-08 (8th Cir.
2012).
Brown’s allegations suggest Strong and Mastny were aware of Brown’s lawsuit
in this matter and subsequently took steps to prevent Brown from advancing in his
treatment program. These steps included giving Brown “negative scor[es]” that
prevented him from “mov[ing] forward in treatment.” (Id.) Liberally construed,
Brown has stated plausible retaliation claims against Strong and Mastny.
Accordingly, his retaliation claims may proceed to service of process. The court
cautions Brown that this is only a preliminary determination based on the allegations
of the Complaint and the supplements to the Complaint. This is not a determination
of the merits of his claims or potential defenses thereto.
E.

Claims Against Fellow Inpatient

Brown named a fellow inpatient as a Defendant in this matter. He alleged M.P.
subjected him to “racial discrimination [and] defamation of character” when he used
racially derogatory language toward Brown. Brown did not allege this fellow
inpatient is a state actor and therefore has not stated a plausible claim against him
pursuant to § 1983. Moreover, to the extent Brown seeks to bring a state-law claim
for defamation against M.P., his allegations fail to state a claim for relief. Moats v.
Republican Party of Nebraska, 796 N.W.2d 584, 594 (Neb. 2011) “In the ordinary
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case, a claim of defamation requires (1) a false and defamatory statement concerning
the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting to
at least negligence on the part of the publisher, and (4) either actionability of the
statement irrespective of special harm or the existence of special harm caused by the
publication.”). Thus, the court will dismiss Brown’s claims against M.P. without
prejudice.
IV. REQUEST FOR TEMPORARY RESTRAINING ORDER
Brown labeled his second supplementary pleading a “Supplementary
Complaint and Temporary Restraining Order.” (Filing No. 15.) The court views this
document as a supplement to his Complaint rather than as an appropriate action for
a temporary restraining order or an injunction.
Even if the document were construed as a motion for a temporary restraining
order, the court would deny the motion without prejudice. Brown’s summary request
for a temporary restraining order seeks a broad order from this Court requiring that
he be “moved where [he] can receive [t]he adequate and necessary treatment ordered
without the causes for retaliation.” (Filing No. 15 at CM/ECF p. 2.) Brown did not
address the factors the district court should consider when determining whether to
grant a motion for preliminary injunctive relief. See Dataphase Sys., Inc. v. C.L. Sys.,
Inc., 640 F.2d 109, 114 (8th Cir.1981) (“[W]hether a preliminary injunction should
issue involves consideration of (1) the threat of irreparable harm to the movant; (2)
the state of balance between this harm and the injury that granting the injunction will
inflict on other parties litigant; (3) the probability that movant will succeed on the
merits; and (4) the public interest.”). Moreover, the court has carefully reviewed the
record and finds that Plaintiff’s allegations in this matter do not entitle him to
preliminary injunctive relief. Brown has made no showing that he faces a threat of
irreparable harm or that he is likely to succeed on the merits of his claims.

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IT IS THEREFORE ORDERED that:
1.
Brown’s retaliation claims against Strong and Mastny in their official
capacities may proceed to service of process.
2.
All other claims against all other Defendants are dismissed without
prejudice to reassertion in an amended complaint.
3.
To obtain service of process on Strong and Mastny, Brown must
complete and return the summons forms that the Clerk of the Court will provide. The
Clerk of the Court shall send two summons forms and two USM-285 forms to Brown
together with a copy of this Memorandum and Order. Brown shall, as soon as
possible, complete the forms and send the completed forms back to the Clerk of the
Court. In the absence of the forms, service of process cannot occur.
4.
Upon receipt of the completed forms, the Clerk of the Court will sign the
summons forms, to be forwarded with a copy of Brown’s Complaint and the two
Supplements to the Complaint to the United States Marshal for service of process.
The Marshal shall serve the summons and Complaint and Supplements without
payment of costs or fees. Service may be by certified mail pursuant to Fed. R. Civ.
P. 4 and Nebraska law in the discretion of the Marshal. The Clerk of the Court will
copy the Complaint and Supplements and Brown does not need to do so.
5.
Federal Rule of Civil Procedure 4 requires service of a complaint on a
defendant within 120 days of filing the complaint. However, because in this order
Brown is informed for the first time of these requirements, Brown is granted, on the
court’s own motion, an extension of time until 120 days from the date of this order
to complete service of process.

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6.
Brown is hereby notified that failure to obtain service of process on a
defendant within 120 days of the date of this order may result in dismissal of this
matter without further notice as to such defendant. A defendant has 21 days after
receipt of the summons to answer or otherwise respond to a complaint.
7.
The Clerk of the Court is directed to set a pro se case management
deadline in this case with the following text: April 2, 2015: Check for completion of
service of summons.
8.
The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this court. Plaintiff shall keep the court informed of his current
address at all times while this case is pending. Failure to do so may result in
dismissal.
9.
Brown’s request for a temporary restraining order is denied without
prejudice to reassertion.
DATED this 9th day of December, 2014.
BY THE COURT:

s/ Joseph F. Bataillon
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility for
the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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