Brown v. Department of Health & Human Services et al

Filing 13

MEMORANDUM AND ORDER - Plaintiff's First Amendment retaliation claims against Defendant Shannon Black and Defendant Chalice Closen in their individual capacities may proceed to service of process. For service of process on Defendant Shannon Blac k and Defendant Chalice Closen in their individual capacities, the clerk of the court is directed to complete 1 summons form and 1 USM-285 form for Defendant Shannon Black and 1 summons form and 1 USM-285 for Defendant Chalice Closen, all using the a ddress Lincoln Regional Center, 801 W Prospector Pl, Lincoln, NE 68522 and forward them together with a copy of the second Amended Complaint (Filing No. 12 ) and a copy of this Memorandum and Order to the Marshals Service. The Marshals Service shall serve Defendant Shannon Black and Defendant Chalice Closen personally in their individual capacities at the Lincoln Regional Center, 801 W Prospector Pl, Lincoln, NE 68522. Service may also be accomplished by using any of the following methods: resi dence, certified mail, or designated delivery service. See Federal Rule of Civil Procedure 4(e); Neb. Rev. Stat. § 25-508.01 (Reissue 2016). The United States Marshal shall serve all process in this case without prepayment of fees from Plaintiff. The clerk of the court is directed to set the following pro se case management deadline: July 25, 2017: check for completion of service of process. 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
CORNELIUS BROWN,
Plaintiff,

8:16CV245

vs.
DEPARTMENT OF HEALTH &
HUMAN SERVICES, CINDY
DYKEMAN, Program Manager;
SHANNON BLACK, Dr., Program
Director; JANA STONER, Program
Therapist; KYLE MALONE, Program
Team Lead; LISA LAURELL, Program
Social Worker; COURTNEY PHILIPS,
Director of Dept. of Health & Human
Services; CHALICE CLOSEN, Program
Team Leader; and GAVIN WISEMAN,
Patient at Lincoln Regional Center;

MEMORANDUM
AND ORDER

Defendants.
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.) The court construed Plaintiff’s motion as an amended complaint and conducted
an initial review. (Filing No. 11.) Upon initial review, the court ordered Plaintiff to
file a second amended complaint asserting cognizable individual capacity claims
against Defendants. (Id.) The court warned Plaintiff that an amended complaint
will supersede, not supplement, all previous complaints. (Id.) Plaintiff
subsequently filed a second amended complaint. (Filing No. 12.) The court now
conducts review of Plaintiff’s second Amended Complaint.

I. SUMMARY OF SECOND AMENDED COMPLAINT
Plaintiff alleges that the Douglas County Mental Health Board civilly
committed him to the Lincoln Regional Center (“LRC”). (Filing No. 12 at
CM/ECF p. 2.) Plaintiff now resides at the Norfolk Regional Center (“NRC”). He
names as Defendants in his second Amended Complaint: Courtney Phillips
(“Phillips”), Director of the Nebraska Department of Health and Human Services
(“DHHS”), six employees who work at LRC, and Gavin Wiseman, a patient at
LRC. (Id. at CM/ECF pp. 2-4.) He sues each of them in their individual capacities.
(Id.) Plaintiff seeks declaratory, injunctive, and monetary relief. (Id. at CM/ECF
pp. 30-31.)
Phillips
Plaintiff alleges that he sent letters to Phillips about his “transgender issues”
and “other concerns of indifference treatment.” (Id. at CM/ECF p. 4.) He also
alleges that she is “aware of the indifference” inflicted upon him at LRC because
of a statement from Defendant Shannon Black (“Black”) that the administration at
LRC is frequently in contact with DHHS. (Id. at CM/ECF p. 5.) Plaintiff believes
that Phillips “has the ability to change[ ] or reply to his correspond[e]nces in a
timely manner.” (Id.)
Black
Plaintiff alleges that Black retaliated against him when he received the
minimum of four points on his February 12, 2016, treatment review plan for
submitting a grievance on January 23, 2016, about staff member Marilyn Bailey’s
statement to Plaintiff that she was taking his “Bod Body Spray” because it
contained alcohol and Plaintiff could drink it. (Id. at CM/ECF p. 6.) Plaintiff
alleges that, while addressing the grievance with Black, Black told him, “Writing
grievances here is not tolerated, it only takes away from your treatment, you need
to manage this in other ways, on the street how would you manage this? So, if you
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want to be here another 2-3 more years then go ahead and shoot your foot off.”
(Id.) He claims that she later stated, “You filed lawsuits against the Norfolk
Regional Center and I got copies of that.” (Id.)
Plaintiff claims that he discussed his concerns with Black about a patient
with H.I.V. carelessly defecating on the toilet. (Id. at CM/ECF pp. 6-7.) Black told
him that “there’s nothing that would be done.” (Id. at CM/ECF p. 7.) Plaintiff
states that nothing was done for four weeks. (Id.) He asserts that Black sent e-mails
to Defendants Jana Stoner (“Stoner”), Cindy Dykeman (“Dykeman”), and Lisa
Laurell (“Laurell”) informing them of Plaintiff’s concerns and warning them
against their opinions. (Id.) He also claims that she e-mailed the units that patients
were no longer allowed to write concerns or call DHHS to discuss grievances. (Id.)
Plaintiff alleges that Black retaliated against him when she denied him the
opportunity to participate in the May 1st patient “Food Order Out.” (Id.) Finally,
he claims that Black confronted him about “mentioning the Ombudsman” and
stated, “Go ahead Cornelius, just jump off the cliff, and you’ll be here that much
longer.” (Id.)
Dykeman
Plaintiff claims that, during a discussion of a grievance, Dykeman stated to
him, “I don’t like having to go over to the administration building having to answer
to grievances. Mentally ill is on your diagnosis and you need to not be so thin
skinned. You need to get through the program.” (Id. at CM/ECF p. 9.) Plaintiff
alleges that, during discussion of a second grievance concerning Defendant Gavin
Wiseman (“Wiseman”), Dykeman stated, “I’ve been here for over 30 years, and
patients who get caught up in writing [grievances] trying to change the rules tend
to move slower through this program.” (Id. at CM/ECF p. 10.) After the
discussion, Dykeman stopped Wiseman in the hallway and stated, “You just keep
doing what you’re doing, I’m gonna get you through here.” (Id.) Plaintiff alleges
that, on April 26, 2016, he was moved into a single room directly across from the

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office of Stoner and Laurell. (Id.) He states that, the next day, Dykeman stated,
“Go ahead and just jump off the cliff,” when he requested to return to Norfolk. (Id)
Plaintiff alleges that he spoke to Dykeman about the smell of the washers
and having to use the washers after another patient with an infection. (Id.)
Dykeman commented in response that, if the issues with the washers continue,
they will put everyone in sweats like the mentally ill patients. (Id. at CM/ECF p.
11.) Plaintiff claims that Dykeman then stated, “You and these grievances, and
wanting to wear [women] clothes is a bit much for LRC, and your being legal
minded, maybe we should send you back to NRC.” (Id.)
Plaintiff alleges that, on October 28, 2016, he returned to NRC. (Id.) He
states that on their visits to NRC, both Dykeman and Black have made negative
comments about his transgender rights and suggested that he should not receive the
appropriate points to return to LRC. (Id.)
Stoner
Plaintiff alleges that Wiseman returned from a meeting on April 19, 2016,
with Stoner and told Plaintiff, “[Stoner] told me during our 1:1 today, that because
of who you are, and what you are (transgender) you need to watch yourself.” (Id. at
CM/ECF p. 14.) The next day, Plaintiff met with Stoner in Black’s office about the
statement. (Id.) Plaintiff alleges that Stoner stated, “I am Gavin’s therapist, and
what if I did say it? Can you prove it?” (Id.) Plaintiff contacted the Ombudsman’s
Office that day and filed a grievance about Wiseman and another “white” staff
member making inappropriate comments to Wiseman. On April 25, 2016, Stoner
told an African-American staff member, who Plaintiff was speaking to about his
frustration, “You are not allowed to talk to other patients about patients.” (Id. at
CM/ECF p. 15.) The next day, Plaintiff was moved into the single room referenced
above “at the decision of Stoner, Malone, Black, and Dykeman.” (Id.) Stoner also
changed Plaintiff’s peer meeting with Wiseman without notifying Plaintiff. (Id.)

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Plaintiff alleges that Stoner was made aware of a sexual act between
Plaintiff and Wiseman. (Id.) Plaintiff alleges that Wiseman came into his room,
exposed himself, and Plaintiff masturbated Wiseman. (Id.) Plaintiff complains that,
although Wiseman consented to the act, several of the defendants imposed harsher
disciplinary actions upon him than on Wiseman. (Id. at CM/ECF pp. 15-16.) He
claims that Stoner treated him different from Wiseman “who was in a similarly
situated act of sexually acting out.” (Id. at CM/ECF p. 16.) He states that Stoner
made negative comments about his gender identity rights. (Id.)
Laurell
Plaintiff alleges that he filed a grievance about Laurell’s statement to him
that, “You were found to be mentally ill, and will be treated as such.” (Id. at
CM/ECF p. 18.) Plaintiff claims that when confronted about the grievance, Laurell
made “unwanted comments about patients who were civilly committed.” (Id.) He
states that the comments continued for 2 ½ months before he spoke to Black about
them. (Id.) Plaintiff states that he filed another grievance against Laurell for stating
during a group meeting, “That’s enough on hearing about Cornelius’ gender
issues,” when Plaintiff was answering questions about his transgender. (Id. at
CM/ECF p. 19.) Plaintiff left the group humiliated and was given a negative mark
in treatment for doing so. (Id.) He states that Laurell also made false allegations
against Plaintiff by stating, “Gavin said that you initiated the act-out,” and those
statements were sent to the Mental Health Board. (Id.)
Plaintiff alleges that he informed Laurell about his decision to meet with a
reporter from the Lincoln Journal Star newspaper. (Id. at CM/ECF p. 18.) Plaintiff
claims that Laurell then contacted Black, and they sent an e-mail denying Plaintiff
any access to the staff writer at the newspaper. (Id.) He alleges that Laurell
photocopied entries from his journal in an attempt to persuade him from seeking
any legal help. (Id. at CM/ECF pp. 18-19.)

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Malone
Plaintiff alleges that he spoke to Defendant Karl Malone (“Malone”) about
the smell of and mildew in the washers, as well as about having to use the washers
after another patient with an infection. (Id. at CM/ECF p. 21.) Plaintiff complains
that, in response, Malone walked away and angrily stated, “Why is this such a big
deal? [H]e uses the washers after everyone else.” (Id.) Plaintiff alleges that when
he mentioned filing a grievance, Malone stated, “You writing grievances, who can
say you didn’t bring it here.” (Id.)
Plaintiff generally states that Malone retaliated against him on several
occasions. (Id.) Examples of this retaliation, according to Plaintiff, are that out of
Plaintiff’s thirteen months at LRC, he had only two staff meetings with Malone
while other patients had many; Malone wrote negative to poor entries on his
treatment files and mental health board notes; and Malone’s input resulted in his
placement in the single room visible by all administration staff. (Id. at CM/ECF pp.
21-22.) He states that he had several discussions with Malone about staff opening
his door without knocking when Plaintiff is “in a state of undress.” (Id. at CM/ECF
p. 22.) Plaintiff believes that Malone’s actions are because he is a defendant in
Plaintiff’s gender identity case. (Id.); See Brown v. Department of Health and
Human Services, et al., Case No. 8:16CV377 (D. Neb.).
Closen
Plaintiff alleges that Closen threatened to place him on privilege suspension
but kept Wiseman in her office most of the evening after an argument between
Plaintiff and Wiseman. (Id. at CM/ECF p. 24.) When Plaintiff asked Wiseman why
he was in Closen’s office, Wiseman stated, “I’m a white boy, and the staff looks at
me as one of their kids, especially [Closen].” (Id.)
Plaintiff alleges that Closen took Wiseman alone to try on different clothes.
(Id.) Plaintiff alleges this is against the rules. (Id.) He states that, after he
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“confronted and questioned it,” Closen started minimally interacting with Plaintiff
and two other African-American patients. (Id. at CM/ECF pp. 24-25.) He claims
that Closen “coaxed” staff to open his door without knocking. (Id. at CM/ECF p.
25.) He alleges that Closen gave Plaintiff negative points on his treatment plan and
caused Plaintiff to lose his job status while Wiseman advanced in treatment and
was given a better job after the “mutually consented act-out.” (Id.) Plaintiff alleges
that Closen demonstrated “adverse action” after Plaintiff wrote a grievance against
Closen and confronted her about “the clothing room issue.” (Id.)
Wiseman
Plaintiff complains that Wiseman exhibited several behaviors that have
resulted in repercussions for other patients but minimal consequences for
Wiseman, including for the mutual sex act between Plaintiff and Wiseman and
Wiseman’s comments to “fight” with Plaintiff. (Id. at CM/ECF pp. 27-28.)
II. APPLICABLE STANDARDS OF 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. §
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.” 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.”).

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“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]
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 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
Plaintiff is an experienced litigant. See e.g., Brown v. Rodrequiez,
4:14CV3071 (D. Neb.); Brown v. Strong, 8:14CV298 (D. Neb.); Brown v.
Department of Health and Human Services et al, 8:16CV377 (D. Neb.); Brown v.
Department of Health and Human Services et al, 8:16CV569 (D. Neb.). Plaintiff’s
claims against Phillips are dismissed. The court has informed Plaintiff, on more
than one occasion, that failure to respond to his grievances and complaints in a
timely fashion do not constitute a violation of his constitutional rights. Plaintiff’s
claims against Wiseman are dismissed. The court has also previously informed
Plaintiff that he does not have cognizable § 1983 claims against his fellow
inpatients, as they are not state actors, and the court can discern no other basis for
relief against Wiseman. With regard to Laurell and Malone, any of Plaintiff’s
claims deemed “plausible” have already proceeded to service of process in
8:16CV377 (Filing No. 8) (i.e. Lincoln Journal Star retaliation claim; gender
identity due process and equal protection claims).
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The court is left to examine Plaintiff’s remaining claims of retaliation.1
Plaintiff’s claims concern the remaining defendants’ actions or reactions to his
grievances about various matters. 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.
Plaintiff’s claims against Dykeman and Stoner are dismissed. Plaintiff’s
allegations fail to establish that they took an adverse action against him and/or that
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Plaintiff raises an equal protection claim over the differential treatment he
received from some of the defendants after his sexual act with Wiseman. Plaintiff
does not have a plausible equal protection claim. He has not shown that the
differential treatment was based upon either a suspect classification or a
“fundamental right.” See Patel v. United States Bureau of Prisons, 515 F.3d 807,
815 (8th Cir. 2008). But, even if the court were to construe Plaintiff’s equal
protection claim under a “class-of-one” theory, his allegations fail to show that he
and Wiseman are “identical or directly comparable . . . in all material respects.”
Robbins v. Becker, 794 F.3d 988, 996 (8th Cir. 2015) (quoting Reget v. City of La
Crosse, 595 F.3d 691, 695 (7th Cir. 2010)). And, a class-of-one claim does not
extend to cases where the rules are uniformly applicable and a state official
exercises his “discretionary authority based on subjective, individualized
determinations.” Novotny v. Tripp Cty., S.D., 664 F.3d 1173, 1179 (8th Cir. 2011)
(quoting Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 602-03 (2008)).

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the adverse action was motivated at least in part by his exercising his right to file
grievances. McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993) (verbal threats
and name calling usually are not actionable under § 1983). See also, Turner v.
Mull, 784 F.3d 485 (8th Cir. 2015) (mere timing of events alone does not establish
the requisite causal link); Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996)
(speculative and conclusory allegations cannot support a retaliation claim).
The court will, however, allow Plaintiff’s retaliation claims against Black
and Closen to proceed. Specifically, Plaintiff alleges that Black gave him the
minimum of four points on his February 12, 2016, treatment review plan in
retaliation for his January 23, 2016, grievance about staff member Marilyn Bailey.
Plaintiff alleges that Closen “coaxed” staff to open his door without knocking and
gave him negative points on his treatment plan in retaliation for his grievance
against and confrontation of Closen about when she took Wiseman alone to try on
clothes against the rules. Liberally construed, these allegations “nudge” Plaintiff’s
retaliation claims against Black and Closen from “conceivable to plausible.”
However, Plaintiff’s remaining allegations against them do not for the same
reasons his claims against Dykeman and Stoner are dismissed. The court cautions
Plaintiff that this is only a preliminary determination based on his allegations, and
is not a determination of the merits of his claims or potential defenses thereto.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s First Amendment retaliation claims against Defendant
Shannon Black and Defendant Chalice Closen in their individual capacities may
proceed to service of process.
2.
For service of process on Defendant Shannon Black and Defendant
Chalice Closen in their individual capacities, the clerk of the court is directed to
complete 1 summons form and 1 USM-285 form for Defendant Shannon Black
and 1 summons form and 1 USM-285 for Defendant Chalice Closen, all using the
address Lincoln Regional Center, 801 W Prospector Pl, Lincoln, NE 68522 and
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forward them together with a copy of the second Amended Complaint (Filing No.
12) and a copy of this Memorandum and Order to the Marshals Service. The
Marshals Service shall serve Defendant Shannon Black and Defendant Chalice
Closen personally in their individual capacities at the Lincoln Regional Center, 801
W Prospector Pl, Lincoln, NE 68522. Service may also be accomplished by using
any of the following methods: residence, certified mail, or designated delivery
service. See Federal Rule of Civil Procedure 4(e); Neb. Rev. Stat. § 25-508.01
(Reissue 2016).
3.
The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.
4.
The clerk of the court is directed to set the following pro se case
management deadline: July 25, 2017: check for completion of service of process.

Dated this 26th day of April, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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