Brown v. Department of Health & Human Services et al
MEMORANDUM AND ORDER - Plaintiff's claims for monetary relief against all Defendants in their official capacity are dismissed as barred under the Eleventh Amendment. Plaintiff's claims for injunctive relief against Defendants Black, Dykeman , Malone, Laurell, Stoner, and Closen in their official and individual capacities are dismissed as moot. Plaintiff shall file an amended complaint asserting cognizable individual capacity claims against Defendants by March 9, 2017. Failure to file an amended complaint within the time specified by the court will result in the court dismissing this case without further notice to Plaintiff. The clerk of the court is directed to set a pro se case management deadline using the following text: March 9, 2017, check for amended complaint. The clerk of the court is directed to terminate Defendant AnthonyWalters from the case. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEPARTMENT OF HEALTH &
HUMAN SERVICES, ANTHONY
WALTERS, Chief Executive Officer;
CINDY DYKEMAN, Program
Manager; SHANNON BLACK, Dr.,
Program Director; JANA STONER,
Program Therapist; KYLE MALONE,
Program Team Lead; and LISA
LAURELL, Program Social Worker,
Plaintiff filed his Complaint on June 3, 2016. (Filing No. 1.) He has been
given leave to proceed in forma pauperis. (Filing No. 6.) On December 2, 2016,
Plaintiff filed a “Motion: For Leave to File an Amended Complaint.” (Filing No.
8.) On December 7, 2016, the court granted Plaintiff leave to file an amended
complaint by January 6, 2017, and advised Plaintiff that his amended complaint
would supersede, rather than supplement, his original complaint. (Filing No. 10.)
Upon reconsideration, the court construes Plaintiff’s “Motion: For Leave to File an
Amended Complaint” as an Amended Complaint. The court now conducts an
initial review of Plaintiff’s Amended Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF AMENDED COMPLAINT
Plaintiff alleges that the Douglas County Mental Health Board civilly
committed him to the Lincoln Regional Center (“LRC”). (Filing No. 8 at CM/ECF
p. 2.) Plaintiff now resides at the Norfolk Regional Center (“NRC”). (Id.) He
names as Defendants in his Amended Complaint: the Nebraska Department of
Health and Human Services (“DHHS”), Courtney Phillips (“Director Phillips”),
Director of DHHS, six employees who work at LRC, and Gavin Wiseman, a
patient at LRC. (Id. at CM/ECF pp. 3-4.) Plaintiff sues Wiseman in his individual
capacity. (Id. at CM/ECF p. 4.) He sues each of the remaining defendants in their
individual and official capacities. (Id.)
Plaintiff filed a grievance because 1) a staff member1 told him that he might
drink his “Bod Body Spray” because it contained alcohol, 2) because Lisa Laurell
(“Laurell”), a social worker and group facilitator, called him “mentally ill,” and 3)
because the washers at the facility are filthy and smell of mold and dirt. (Id. at
CM/ECF pp. 3-4, 15-16.) Plaintiff alleges that, after he filed the grievance, he
spoke to Defendant Shannon Black (“Black”), the program director, and Defendant
Cindy Dykeman (“Dykeman”), the sex offender services program manager. (Id. at
CM/ECF pp. 2-4.) Plaintiff alleges that Black stated, “Using the grievance process
is something that’s not tolerated,” and suggested to him that he learn to manage
and process issues in other ways. (Id. at CM/ECF p. 5.)2 Plaintiff alleges that Black
also stated, “You’ve filed lawsuits against NRC (Norfolk Regional Center) and
I’ve got copies of that.” (Id.) He maintains that Black sent several e-mails to some
of the other defendants informing them of his complaint and how they should
The staff member is not a named defendant.
The court will correct capitalization and spelling in the original quotes
from Plaintiff’s Amended Complaint.
respond to him. (Id.) Plaintiff believes that Black “demonstrates poor professional
Plaintiff alleges that Dykeman, during the conversation, commented, “I
don’t like having to go over to the administration building having to answer to
grievances.” (Id.) He alleges that Dykeman repeatedly told him, “I’ve been here
over 30 years, and patients who get caught up in writing grievances tend to move
slower through this program.” (Id.) Plaintiff claims that Dykeman stated, “If these
issues with the washers become too much, we’ll just put all of the patients in
sweats, as they are in Building #3 and #5,” which Plaintiff alleges house the
mentally ill patients. (Id.)
Plaintiff alleges that he approached Defendant Kyle Malone (“Malone”), a
team leader, about the unsanitary washers and about having to share the washers
with another patient with an infected genital area. (Id. at CM/ECF pp. 3, 6.)
Plaintiff maintains that Malone angrily responded, “Why is this such a big deal?
You writing grievances, who can say you didn’t bring the infection here.” (Id. at
CM/ECF p. 6.) He claims that Malone walked into his office and closed the door.
(Id.) Plaintiff alleges that Malone has displayed several forms of retaliation against
him, including poor to negative entries on Plaintiff’s treatment files to the Mental
Health Board and putting Plaintiff in a secluded, private room in complete view of
all of the administrative staff. (Id.) He states that Malone is party to another civil
complaint about the violation of Plaintiff’s transgender rights. (Id.); See Brown v.
Department of Health and Human Services, et al., Case No. 8:16CV377 (D. Neb.).
Plaintiff alleges that Defendant Jana Stoner (“Stoner”), a therapist and
supervisor, is a personal therapist for another patient, Gavin Wiseman
(“Wiseman”). (Id. at CM/ECF pp. 3, 7.) Plaintiff claims that Wiseman told him
that Stoner stated during a meeting with Wiseman, “Because of who he is, and
what he is, (referring to plaintiff who is transgender), you need to watch yourself.”
(Id. at CM/ECF p. 7.) Plaintiff alleges Stoner later approached him and another
staff member who is black, who Plaintiff was speaking with about “the problem
with Defendant Wiseman,” and stated, “You are not to talk about other patients
with patients.” (Id.) Plaintiff filed a grievance. (Id. at CM/ECF pp. 7, 21-22.) He
alleges that he was moved the next day to a private room “as a result of Defendant
Stoner, Malone, Black, and Dykeman.” (Id. at CM/ECF p. 7.)
Plaintiff alleges that Stoner was made aware of a sexual act between
Plaintiff and Wiseman. (Id.) According to Plaintiff, Wiseman exposed himself in
Plaintiff’s room and Plaintiff masturbated Wiseman. (Id. at CM/ECF p. 8.) Plaintiff
alleges that he was subsequently placed on “several inhumane restrictions” (ward
restriction and day hall restriction without staff), while Wiseman received only “no
contact restrictions” because Stoner protected Wiseman. (Id. at CM/ECF pp. 7-8.)
Plaintiff alleges that he was humiliated, which resulted in a loss of sleep and
feeling attacked by the administration. (Id. at CM/ECF p. 8.) He also claims that
Defendants gave him negative scores on his treatment plan, which hindered his
advancement in treatment, “after Defendants Clasen, Black, Stoner, and Dykeman
were aware of the mutually consented sexual act-out.” (Id. at CM/ECF p. 10.) He
states that Wiseman, however, advanced in treatment. (Id.) Plaintiff alleges that
this treatment caused him to request return to NRC. (Id.) He claims that he has
heard that Wiseman has since made statements of participating in the sexual act “to
offset Plaintiff’s civil action.” (Id. at CM/ECF p. 8.)
Plaintiff alleges that Laurell and Black photocopied entries from his journal
to “use as leverage” for filing this action and as an attempt to prevent him from
seeking assistance from the Lincoln Journal Star and other legal help. (Id.) Plaintiff
alleges that “he was also subject to retaliation by Defendant Chalice Closen,3 a
team leader, for grievances submitted in regards to her showing favoritism in the
Plaintiff spells her name as Claussen and Clasen elsewhere in his Amended
Complaint. (See Filing No. 8 at CM/ECF pp. 1, 10.).
white patients and negative interactions with the black patients.”4 (Id. at CM/ECF
pp. 3, 8.) He alleges that he sent his grievances and concerns to Director Phillips
and received no response. (Id. at CM/ECF p. 9.)
Plaintiff seeks declaratory, injunctive, and monetary relief. (Id. at CM/ECF
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). The court
must dismiss a complaint or any portion of it that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or
grounds for a claim, and a general indication of the type of litigation involved.’”
Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014)
(quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a]
Plaintiff filed a grievance about Closen allowing “Gavin W.” play a video
gaming system when he and Plaintiff are both on “P.S.” (Id. at CM/ECF p. 33.)
pro se complaint must be liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal
quotation marks and citations omitted).
Liberally construed, Plaintiff 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).
Sovereign Immunity; Injunctive Relief Against Defendants
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. 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
Here, Plaintiff seeks monetary damages against state employees in their
official and individual capacities. Plaintiff’s claims for monetary relief against
Defendants in their official capacities are barred by the Eleventh Amendment.
Plaintiff’s claims for injunctive relief against all state employee defendants but
Director Phillips will be dismissed as moot because they work for LRC and are not
alleged to have any authority over Defendant at NRC. Thus, these defendants
would be incapable of imposing any injunctive relief ordered as to Plaintiff. See
Randolph v. Rodgers, 253 F.3d 342, 345-46 (8th Cir. 2001) (denying prisoner’s
requested prospective injunctive relief as to several employees of correctional
facility in which prisoner was no longer incarcerated because those employees had
no authority to execute any granted injunctive relief at the prisoner’s present
Individual Capacity Claims
The crux of Plaintiff’s complaints appear to be that Defendants Black,
Dykeman, Malone, Stoner, Laurell, and Closen retaliated against him for filing
grievances and for his sexual act with Wiseman. He alludes to an equal protection
claim alleging that he received harsher punishment than Wiseman for their sexual
The law is settled that as a general matter the First Amendment prohibits
government officials from subjecting an individual to retaliatory actions for
speaking out. Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014) (citing Hartman
v. Moore, 547 U.S. 250, 256 (2006)); Bernini v. City of St. Paul, 665 F.3d 997,
1006–07 (8th Cir. 2012); see Small v. McCrystal, 708 F.3d 997, 1008 (8th Cir.
2013). To establish a First Amendment retaliation claim under 42 U.S.C. § 1983,
the plaintiff must show (1) he engaged in a protected activity, (2) the government
official took adverse action against him that would chill a person of ordinary
firmness from continuing in the activity, and (3) the adverse action was motivated
at least in part by the exercise of the protected activity. Peterson, 754 F.3d at 602.
In order to establish an equal protection claim, a prisoner must show that he is
treated differently from similarly-situated inmates and that the different treatment
is based upon either a suspect classification or a “fundamental right.” Patel v.
United States Bureau of Prisons, 515 F.3d 807, 815 (8th Cir. 2008).
Although the filing of a grievance may be a protected First Amendment
activity, Plaintiff has not sufficiently alleged a retaliation claim against any
defendant. He fails to allege that any defendant actually took an adverse action
against him that was motivated at least in part by Plaintiff filing a grievance, or his
allegations are simply too conclusory. Similarly, Plaintiff alludes to an equal
protection claim but his allegations do not show that he and Wiseman are
similarly-situated and that their different punishment was based upon either a
suspect classification or a “fundamental right.”
With regard to any additional claims that Plaintiff seeks to raise (i.e.
defamation, failure to respond to grievances, fellow in-patient), the court reminds
Plaintiff that it has dismissed similar claims from him in other cases. See Brown v.
Department of Health and Human Services, et al., Case No. 8:16CV377 (D. Neb.)
(dismissed defamation and response to grievances claims); Brown v. Nebraska
Department of Correctional Services, et al., Case No. 4:14CV3071 (D. Neb.)
(dismissed denial of sex offender treatment, mental anguish, and defamation
claims); Brown v. Dept. of Helath and Human Svs., et al., Case No. 8:14CV298
(D. Neb.) (dismissed response to grievances and fellow in-patient claims).
Out of an abundance of caution, the court will provide Plaintiff an
opportunity to file an amended complaint that states a claim upon which relief may
be granted. Plaintiff shall file his amended complaint no later than March 9, 2017.
Plaintiff is warned that his amended complaint will supersede, not
supplement, all previous complaints. Failure to file an amended complaint within
the time specified by the court will result in the court dismissing this case without
further notice to Plaintiff.
IT IS THEREFORE ORDERED that:
Plaintiff’s claims for monetary relief against all Defendants in their
official capacity are dismissed as barred under the Eleventh Amendment.
Plaintiff’s claims for injunctive relief against Defendants Black,
Dykeman, Malone, Laurell, Stoner, and Closen in their official and individual
capacities are dismissed as moot.
Plaintiff shall file an amended complaint asserting cognizable
individual capacity claims against Defendants by March 9, 2017. Failure to file an
amended complaint within the time specified by the court will result in the court
dismissing this case without further notice to Plaintiff.
The clerk of the court is directed to set a pro se case management
deadline using the following text: March 9, 2017, check for amended complaint.
The clerk of the court is directed to terminate Defendant Anthony
Walters from the case.
Dated this 7th day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?