Brown v. Department of Health and Human Services et al

Filing 8

MEMORANDUM AND ORDER that the Plaintiff's claims for monetary relief against the DHHS and all other defendants in their official capacities are dismissed as barred by the Eleventh Amendment. Plaintiff's claims for injunctive relief as agai nst defendants Black, Malone, Becker, Dykeman, and Laurell in their individual and official capacities are dismissed as moot. Plaintiff's defamation claim against all defendants is dismissed for failure to state a claim upon which relief can be granted. To the extent Plaintiff attempts to assert a § 1983 claim that the defendants failed to respond to her grievances and complaints in a timely fashion, such claim is dismissed for failure to state a claim upon which relief can be gra nted. This case may proceed to service of process as to the following claims: (A) claims for prospective injunctive relief against the DHHS and defendant Philips in her official capacity and (B) claims for monetary and declaratory relief against d efendants Philips, Black, Malone, Becker, Dykeman, and Laurell in their individual capacities for (i) denial of equal protection by subjecting Plaintiff to gender discrimination; (ii) First Amendment retaliation; and (iii) denial of due process und er the Fourteenth Amendment. The clerk of the court is directed to send to Plaintiff copies of the Complaint (Filing No. 1 and 1-1) and this Memorandum and Order, along with eight summons forms and eight USM 285 Forms for service on the followin g defendants: the Nebraska Department of Health and Human Services; Philips in her official capacity; and Philips, Black, Malone, Becker, Dykeman, and Laurell in theirindividual capacities. (See attached Notice Regarding Service.) Federal Rule of C ivil Procedure 4(m) requires service of the complaint on a defendant within 90 days of filing the complaint. However, Plaintiff 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. (See this courts General Order No. 2015-06.) If requested to do so in this matter, the United States Marshal will serve all process in this case without prepayment of fees from Plaintiff. In making such a request, Plaintiff must complete the USM 285 forms to be submitted to the clerk of the court with the completed summons forms. Without these documents, the United States Marshal will not serve process. Upon receipt of the completed forms, the clerk of the court will sign the summons forms and forward them to the United States Marshal for service on the defendants, together with a copy of the Complaint. In the event Plaintiff asks the United States Marshal to serve process, the clerk of the court will make copies of the Complaint for service on the defendants. The clerk of the court is directed to set the following pro se case management deadline: March 10, 2017: check for completion of service of process. Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CORNELIUS BROWN,
Plaintiff,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, COURTNEY
PHILIPS, Director, SHANNON
BLACK, Program Director, KYLE
MALONE, SOS Team Leader,
WILLIAM BECKER, Program
Therapist, CINDY DYKEMAN,
Program Manager, and LISA
LAURELL, Program Social Worker,
et. al.,
Defendants.

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8:16CV377

MEMORANDUM
AND ORDER

Plaintiff Cornelius Brown (“Plaintiff”) filed his Complaint (Filing No. 1) on
August 1, 2016, and a Supplemental Complaint (Filing No. 1-1) on August 24, 2016,
and was subsequently granted leave to proceed in forma pauperis (Filing No. 6). The
court now conducts an initial review of Plaintiff’s complaints to determine whether
summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff alleges that the Douglas County Mental Health Board civilly
committed him to the Lincoln Regional Center (“LRC”) in Lincoln, Nebraska, on
September 9, 2015, and he was confined there when the incidents at issue occurred.
Plaintiff has recently been moved to the Norfolk Regional Center (“NRC”). (Filing
7.) Plaintiff sues Courtney Philips, Director of the Nebraska Department of Health

and Human Services (“DHHS”)—the state agency that operates the LRC and
NRC—and five employees who work at the LRC for treating him unfavorably because
he is transgender. Plaintiff sues each of the defendants in their individual and official
capacities.
Plaintiff’s Complaint alleges that he is an “openly documented transgender who
indentif[ies] as female, and has been dressing accordingly since age 16.” (Filing No.
1 at CM/ECF p. 4 (capitalization corrected).) In both May and June of 2016, Plaintiff
approached defendant Kyle Malone, a team leader, and requested that Plaintiff be
allowed to “dress in clothing that identifies with her gender identity” and to purchase
and wear clothing consistent with Plaintiff’s gender identity. Malone laughed at
Plaintiff, told Plaintiff that her1 “request is as good as denied,” and said, “If you ever
want to get outa here, just talk in your groups, & let the rest of this go.”
In June 2016, Plaintiff mailed a complaint to defendant DHHS Director Philips
concerning Plaintiff’s “expression of her . . . transgender rights and the discrimination
and inhumane treatment plaintiff has been subjected to,” including being moved to a
room with her own bathroom (instead of sharing a bathroom with another patient) that
was visible to all LRC staff and administration, and being subject to staff members
barging into her room without knocking. (Filing No. 1 at CM/ECF p. 5 (capitalization
corrected).) Plaintiff alleges that Philips has not responded to her complaint.
Plaintiff accuses defendant Shannon Black, LRC Program Director, of
discrimination, mental anguish, and defamation of character during June and July
2016 for moving Plaintiff to a new room after she met with Black to discuss “being
allowed to dress in attire that represents Plaintiff’s gender identity.” (Filing No. 1 at
CM/ECF p. 6 (capitalization corrected).) Plaintiff alleges that both Black and LRC
Program Manager Cindy Dykeman told Plaintiff to submit in writing the items
1

From this point on, I shall use feminine pronouns to refer to Plaintiff, in
accordance with her expressed gender preference.
2

Plaintiff would like to have. Plaintiff complied2, but has not received a reply and has
thus “been denied to transition.” (Filing No. 1 at CM/ECF p. 6.)
Plaintiff further complains that defendants Lisa Laurell, LRC Social Worker
and Group Therapist, and William Becker, LRC Therapist and Group Facilitator, have
“initiated negative retaliation” against Plaintiff by writing “negative entries” about
Plaintiff to the mental health board. Plaintiff claims that other inmates have not been
treated this way, even those who were caught having sexual interaction, viewing child
pornograpy, and attacking a therapist.
In her Supplemental Complaint (Filing No. 1-1), Plaintiff alleges that since the
filing of her August 1, 2016, Complaint in this court, defendants Laurell, Black, and
Becker have further retaliated against her. Specifically, Plaintiff says she filed her first
Complaint and then contacted a staff writer for the local newspaper, the Lincoln
Journal Star, who expressed interest in Plaintiff’s Complaint and discussed writing a
story on it. Thereafter, Laurell and Black sent an email throughout Plaintiff’s housing
unit at the LRC warning all staff that there would be “consequences for any
communication with the plaintiff regarding her . . . concerns, and that no one from the
media was allowed into the building to speak with the plaintiff without the named
defendants[’] permission.” (Filing No. 1-1 at CM/ECF p. 2 (capitalization corrected).)
When Plaintiff approached Laurell about the situation, Laurell told Plaintiff to
leave her office and, since then, Plaintiff’s telephone calls have been monitored and
Plaintiff has been subject to room searches for contraband three times a month, while
other LRC residents are subject to contraband searches only once a month. Plaintiff
claims that since she filed her lawsuit and talked to the newspaper, LRC staff has been

2

Plaintiff requested “female undergarments (appropriate, reasonable amount),”
“female dress: pants, tops, dresses, hair[,] make-up items, (reasonable amount),” and
“female dress: shoes, stockings, (fishnets)[,] other fem[i]nine items.” (Filing No. 1
at CM/ECF p. 11 (capitalization corrected).)
3

directed to open her room door without knocking; LRC has generated more negative
treatment notes about Plaintiff; and the LRC denied Plaintiff the proper amount of
“points” during the June and August 2016 reporting periods. (Id. at p. 3.)
Finally, Plaintiff alleges that she met with defendant Black3 in August 2016, and
Black “repeatedly denied” Plaintiff’s requests concerning her gender identity, stating,
“All this is gonna do is shoot you in the foot, this will keep you down here longer, so
just focus on getting out of here.” (Id.) Plaintiff has not received any further
communication from the defendants since this meeting.
Pursuant to 42 U.S.C. § 1983, Plaintiff seeks to assert claims for declaratory,
injunctive, and monetary relief for violations of the First, Fifth, Eighth, and Fourteenth
Amendments that occurred when the defendants subjected Plaintiff to gender
discrimination, cruel and unusual punishment, violation of Plaintiff’s right to equal
protection, and defamation of character related to her “constitutional rights to free
gender expression.” (Filing No. 1-1 at CM/ECF p. 3.) As far as injunctive relief is
concerned, Plaintiff wishes to dress according to her gender identity at the LRC and
requests to be transferred to a treatment facility that will not subject her to
discrimination. (Filing No. 1 at CM/ECF pp. 8-9.)
Liberally construed, Plaintiff claims the defendants denied her equal protection
by discriminating against her based on gender; subjected her to First Amendment
retaliation; denied her due process under the Fourteenth Amendment; and defamed her
character.

3

Plaintiff also claims to have met with Dr. Sanat Roy, a LRC contract
psychologist, at the same time she met with Black, but Plaintiff has not named Roy
as a defendant.
4

II. 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. § 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.”).
“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).

5

III. DISCUSSION OF CLAIMS
A.

Monetary Relief Requested Against DHHS & Defendants in Official
Capacities; Injunctive Relief Requested Against Defendants in All Capacities

Plaintiff seeks monetary relief from the DHHS and state defendants in their
official capacities for alleged past violations of federal law. Plaintiff is not entitled to
such relief because the Eleventh Amendment to the United States Constitution
provides states, state agencies, and state officials acting in their official capacities with
immunity from suits brought by citizens of other states and from suits brought by a
state’s own citizens. See Hadley v. North Arkansas Cmty. Technical Coll., 76 F.3d
1437, 1438 (8th Cir. 1996), cert. denied, 519 U.S. 1148 (1997); Hans v. Louisiana,
134 U.S. 1, 15 (1890). 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. Lane v.
Pena, 518 U.S. 187, 192 (1996); Florida Dep’t of Health & Rehab. Servs. v. Florida
Nursing Home Ass’n, 450 U.S. 147, 149 (1981); Nevels v. Hanlon, 656 F.2d 372, 37778 (8th Cir. 1981). An exception to this immunity was recognized by the Supreme
Court in Ex Parte Young, 209 U.S. 123 (1908), which permits prospective injunctive
relief against state officials for ongoing federal law violations. This exception does
not apply to cases involving requests for purely retroactive relief. Green v. Mansour,
474 U.S. 64 (1985).
There is nothing in the record before the court showing that the State of
Nebraska waived, or that Congress overrode, sovereign immunity in this matter.
Therefore, Plaintiff’s claims for monetary relief against the DHHS and the state
defendants in their official capacities are barred by the Eleventh Amendment. While
Plaintiff’s claims for prospective injunctive relief against these defendants may not be
dismissed on Eleventh Amendment grounds pursuant to Ex Parte Young, they will be
dismissed as moot as to some of the defendants. Specifically, Plaintiff’s requests for
injunctive relief against defendants Black, Malone, Becker, Dykeman, and Laurell are
6

moot because these defendants are alleged to work at the LRC and are not alleged to
have any authority over Plaintiff at the NRC, where she is now housed. Thus, these
defendants would be incapable of complying with any injunctive relief ordered as to
this 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 facility).
However, because defendant Philips is alleged to be the director of the
DHHS—the agency which governs both the LRC and NRC—Plaintiff’s request for
prospective injunctive relief against Philips may proceed. Randolph, 253 F.3d at 346
(relocated prisoner’s claim could proceed against director of state department of
corrections because director had authority over all facilities, and injunction against
director would have effect no matter where in the state correctional system prisoner
was located).
B.

Equal Protection

Plaintiff complains that the defendants violated the Equal Protection Clause’s
prohibition against sex-based discrimination when the defendants treated her
unfavorably because of her gender non-conformity. Similar claims have been allowed
to proceed under the Equal Protection Clause. See Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000) (“Our cases have recognized successful equal protection
claims brought by a ‘class of one,’ where the plaintiff alleges that she has been
intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.”); Glenn v. Brumby, 663 F.3d 1312, 1316
(11th Cir. 2011) (holding that discriminating against someone on the basis of his or
her gender non-conformity constitutes sex-based discrimination under the Equal
Protection Clause; noting the “congruence between discriminating against transgender
and transsexual individuals and discrimination on the basis of gender-based behavioral
7

norms”); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (discrimination against
transgender individual because of his or her gender non-conformity is gender
stereotyping prohibited by Equal Protection Clause).
While the court will ultimately need to determine the level of scrutiny4
applicable to the government action at issue, Plaintiff’s allegations are sufficient at the
pleading stage to state an equal protection claim. See Denegal v. Farrell, No. 1:15-cv1251, 2016 WL 3648956, at *7 (E.D. Cal. July 8, 2016) (Findings and
Recommendations of Magistrate Judge adopted on Sept. 9, 2016) (“The level of
scrutiny applicable to classifications based on transgender status has not been
determined by the United States Supreme Court,” and “Courts in this circuit have
reached differing conclusions as to the level of scrutiny to be applied.”); Adkins v. City
of New York, 143 F. Supp. 3d 134, 140 (S.D.N.Y. 2015) (concluding that “transgender
people are a quasi-suspect class” and court “must apply intermediate scrutiny to
defendants’ treatment of plaintiff” in § 1983 action brought by transgender arrestee
against city officials); Fields v. Smith, 712 F. Supp. 2d 830 (E.D. Wis. 2010), aff’d,
653 F.3d 550 (7th Cir. 2011) (applying rational basis review to equal protection claim
brought by inmates with gender-identity disorder).
Therefore, I shall allow Plaintiff’s equal protection claim to go forward.

4

Further, no matter what level of scrutiny applies, the defendants’ treatment of
Plaintiff must be balanced against penological interests like safety and protection from
violence. Fegans v. Norris, 537 F.3d 897, 906 (8th Cir. 2008) (inmate’s equal
protection claim failed when prison had valid penological interests of safety and
security for differing hair-length rules for men and women); Tates v. Blanas, No.
S-00-2539, 2003 WL 23864868, at *10 (E.D. Cal. Mar. 11, 2003) (“With regard to
[transsexual detainee’s request for a] bra, the possibility that it could be misused as a
weapon or noose must be balanced against any medical or psychological harm to him
resulting from denial of a bra”; defendants may not “apply a categorical rule . . . that
denies an inmate a bra simply because he is a transgender or is housed in a men’s
ward”).
8

C.

First Amendment Retaliation

Plaintiff claims that the defendants retaliated against her for filing this lawsuit
and for talking to the local newspaper.
To establish a First Amendment retaliation claim under 42 U.S.C. § 1983, the
plaintiff must show (1) she engaged in protected activity; (2) the government official
took adverse action against her 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. Revels v. Vincenz, 382 F.3d 870 (2004) (citing
Naucke v. City of Park Hills, 284 F.3d 923, 927-28 (8th Cir. 2002)). Further, “[t]o
prevail in an action for First Amendment retaliation, [a plaintiff] must show a causal
connection between [the defendant’s] retaliatory animus and [the plaintiff’s] subsequent
injury.” Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir. 2007) (citing Hartman v.
Moore, 547 U.S. 250 (2006)).
Plaintiffs’s allegations of retaliation are plausible. They suggest that the
defendants reacted to Plaintiff’s complaining to LRC staff, filing a civil lawsuit, and
contacting the newspaper by taking steps to prevent Plaintiff from advancing in her
treatment program, such as writing “negative entries” about Plaintiff to the mental
health board and denying Plaintiff the proper amount of “points” during certain
reporting periods.
Therefore, Plaintiff’s retaliation claims may proceed.
D.

Due Process

Plaintiff bases some of her claims on the Eighth Amendment. However, the
Eighth Amendment’s proscription against “cruel and unusual punishments” does not
apply to civilly committed detainees because they are not being punished for criminal
offenses. Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir. 2004) (“because an
9

involuntarily committed psychiatric patient is confined for treatment rather than
incarcerated for the purpose of punishment following conviction, the Eighth
Amendment does not apply”). Rather, “[t]he rights of patients in psychiatric hospitals
more appropriately arise under the Fourteenth Amendment.” Id.
Under the Due Process Clause of the Fourteenth Amendment, involuntarily
committed persons retain substantive liberty interests, which include the rights to
adequate food, shelter, clothing, and medical care; safe conditions of confinement; and
freedom from unnecessary bodily restraint. Youngberg v. Romeo, 457 U.S. 307, 315316 (1982). To determine whether the nature and extent of an infringement of a liberty
interest rises to the level of a due process violation, the court must balance the
individual’s liberty interest against relevant state interests. Id. at 320-321.
Here, Plaintiff claims she is being denied access to items like feminine clothing
and makeup that have been characterized as part of a treatment regimen for genderidentity disorder (“GID”). See Kosilek v. Spencer, 774 F.3d 63, 90 (1st Cir. 2014)
(medical treatment of inmate with GID geared toward alleviating severity of inmate’s
distress included hormonal treatments, feminine products and clothing, and hair
removal); Konitzer v. Frank, 711 F. Supp. 2d 874 (E.D. Wis. 2010) (denying in part
prison’s motion for summary judgment in male-to-female transgender inmate’s suit
to gain access to treatment for GID, including female clothing and grooming items;
noting that “[m]akeup and items such as depilatories and hair growth stimulators are
similar to feminine clothing for purposes of [Plaintiff’s] GID treatment,” and while
such items “may appear superficial or not medical,” they “in fact play a prominent role
in the treatment of GID”); Yvette K. W. Bourcicot & Daniel Hirotsu Woofter, Prudent
Policy: Accommodating Prisoners with Gender Dysphoria, 12 Stan. J. Civ. Rts. &
Civ. Liberties 283 (2016) (“‘Real life experience,’ in which an individual outwardly
expresses his or her gender identity, is a recognized diagnostic tool and often one
component of a broader treatment plan for individuals with gender dysphoria. For
example, real life experience for a male-to-female transsexual individual can include
assuming a feminine appearance (such as by wearing female garments, makeup, and
10

long hair), and effecting effeminate mannerisms and speech patterns.”) (footnotes
omitted).
“[W]here a [civilly-committed] patient’s Fourteenth Amendment claim is for
constitutionally deficient medical care, we apply the deliberate indifference standard
from the Eighth Amendment.” Mead v. Palmer, 794 F.3d 932, 936 (8th Cir. 2015)
(quotation marks and citation omitted); Revels, 382 F.3d at 874 (recognizing that
Fourteenth Amendment applied to involuntarily committed patient’s § 1983 claims,
but applying Eighth Amendment standards because patient’s “confinement is subject
to the same safety and security concerns as that of a prisoner”). Therefore, while
Plaintiff is not a prisoner, Eighth Amendment standards apply to her claim.
The Eighth Amendment deliberate indifference standard includes both an
objective and a subjective component. Plaintiff must demonstrate that (1) she suffered
from objectively serious medical needs, and (2) the defendants knew of, but
deliberately disregarded, those needs. Saylor v. Nebraska, 812 F.3d 637, 644 (8th Cir.
2016), as amended (Mar. 4, 2016). “A medical condition is ‘objectively serious’ if the
prisoner was diagnosed by a doctor or it is so obvious that a lay person would
recognize the medical need.” Id. “The subjective prong of deliberate indifference is
an extremely high standard that requires a mental state of more . . . than gross
negligence. It requires a mental state akin to criminal recklessness.” Id.
The Eighth Circuit Court of Appeals has applied this Eighth Amendment
analysis to claims similar to Plaintiff’s, as have the United States Supreme Court and
courts in other jurisdictions. Reid v. Griffin, 808 F.3d 1191, 1192 (8th Cir. 2015)
(applying Eighth Amendment to inmate’s claim that prison officials refused to provide
hormone-replacement therapy for GID); Long v. Nix, 86 F.3d 761 (8th Cir. 1996)
(prison officials were not deliberately indifferent to medical needs of prisoner who
claimed to be transsexual and, thus, prison officials were not liable in prisoner’s §
1983 action alleging that prison officials’ failure to treat inmate’s GID constituted
cruel and unusual punishment; assuming without deciding that GID is serious medical
11

need for purposes of Eighth Amendment analysis); White v. Farrier, 849 F.2d 322
(8th Cir. 1988) (applying Eighth Amendment to transsexual inmate’s § 1983 claim
against prison officials who refused to permit inmate to have sexual reassignment
surgery, cosmetic procedures, hormone therapy, female clothing and cosmetics, and
transfer to women’s prison; concluding that transsexualism is serious medical need to
which prison officials may not act with deliberate indifference); see also Farmer v.
Brennan, 511 U.S. 825 (1994) (§ 1983 claim brought by preoperative transsexual
inmate challenging prison officials’ failure to protect him from danger analyzed under
Eighth Amendment); Kosilek v. Spencer, 774 F.3d 63, 90 (1st Cir. 2014) (applying
Eighth Amendment to inmate’s lawsuit against prison officials for failure to provide
sex-reassignment surgery to treat inmate’s GID); Battista v. Clarke, 645 F.3d 449, 452
(1st Cir. 2011) (“although protection of civilly committed persons rests on due process
concepts rather than the Eighth Amendment, deliberate indifference is the familiar test
for medical care”; affirming district court’s finding that state officials were
deliberately indifferent—or exercised unreasonable professional judgment—with
regard to medical needs of civil detainee with GID by denying detainee hormone
therapy); Konitzer v. Frank, 711 F. Supp. 2d 874 (E.D. Wis. 2010) (applying Eighth
Amendment analysis and denying in part prison’s motion for summary judgment in
male-to-female transgender inmate’s suit to gain access to treatment for GID).
As Plaintiff alleges that she is an “openly documented transgender,” and I must
construe her Complaint liberally, Plaintiff plausibly alleges that she suffers from an
objectively serious medical need and that the defendants knew of her condition, but
refused treatment for that condition. At this preliminary stage, Plaintiff has stated a
due process claim for relief under the Fourteenth Amendment for deliberate
indifference to Plaintiff’s serious medical needs.5

5

Of course, it remains to be seen whether Plaintiff has been medically diagnosed
with gender-identity disorder or dysphoria and whether medical professionals think
the therapy suggested by Plaintiff (access to female undergarments, clothing, and
cosmetics) is appropriate. Reid, 808 F.3d at 1192 (no Eighth Amendment violation
12

E.

Defamation

Plaintiff alleges that she suffered “defamation of character” when the
defendants violated her constitutional rights. However, Plaintiff does not state who
made the allegedly defamatory statements or the nature of the alleged defamatory
statements. Regardless, “[d]amages for defamation are not recoverable under § 1983
because a defamed person has not been deprived of any right, privilege or immunity
secured to him by the Federal Constitution or laws of the United States.” Ellingburg
v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975). Accordingly, Plaintiff’s defamation
claim will be dismissed.
F.

Other Possible Claims

To the extent Plaintiff intends to base a § 1983 claim on her allegations that the
defendants failed to respond to her grievances and complaints in a timely fashion, such
allegations do not constitute a violation of Plaintiff’s constitutional rights. See
Merryfield v. Jordan, 431 Fed. App’x 743, 749 (10th Cir. 2011) (holding that 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)
(holding that allegations regarding actions of prison officials in handling prisoner’s
grievances and regulating access to his attorney were insufficient to state a
constitutional claim); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (holding
that inmates have no “liberty interest” in the processing of their grievances, such as
would support § 1983 claim for prison official’s failure to pick up his completed
grievance forms).

when prison officials refused to provide hormone-replacement therapy for GID when
numerous mental-health professionals evaluated inmate and none diagnosed her with
GID or concluded that treatment for such disorder was appropriate).
13

Accordingly,
IT IS ORDERED:
1.
Plaintiff’s claims for monetary relief against the DHHS and all other
defendants in their official capacities are dismissed as barred by the Eleventh
Amendment;
2.
Plaintiff’s claims for injunctive relief as against defendants Black,
Malone, Becker, Dykeman, and Laurell in their individual and official capacities are
dismissed as moot;
3.
Plaintiff’s defamation claim against all defendants is dismissed for failure
to state a claim upon which relief can be granted;
4.
To the extent Plaintiff attempts to assert a § 1983 claim that the defendants
failed to respond to her grievances and complaints in a timely fashion, such claim is
dismissed for failure to state a claim upon which relief can be granted;
5.
This case may proceed to service of process as to the following claims:
(A) claims for prospective injunctive relief against the DHHS and defendant Philips
in her official capacity and (B) claims for monetary and declaratory relief against
defendants Philips, Black, Malone, Becker, Dykeman, and Laurell in their individual
capacities for (i) denial of equal protection by subjecting Plaintiff to gender
discrimination; (ii) First Amendment retaliation; and (iii) denial of due process under
the Fourteenth Amendment;
6.
The clerk of the court is directed to send to Plaintiff copies of the
Complaint (Filing No. 1 and 1-1) and this Memorandum and Order, along with eight
summons forms and eight USM 285 Forms for service on the following defendants:
the Nebraska Department of Health and Human Services; Philips in her official
14

capacity; and Philips, Black, Malone, Becker, Dykeman, and Laurell in their
individual capacities. (See attached Notice Regarding Service.)
Federal Rule of Civil Procedure 4(m) requires service of the complaint on a
defendant within 90 days of filing the complaint. However, Plaintiff 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. (See this court’s General Order No. 2015-06.)
7.
If requested to do so in this matter, the United States Marshal will serve
all process in this case without prepayment of fees from Plaintiff. In making such a
request, Plaintiff must complete the USM 285 forms to be submitted to the clerk of
the court with the completed summons forms. Without these documents, the United
States Marshal will not serve process. Upon receipt of the completed forms, the clerk
of the court will sign the summons forms and forward them to the United States
Marshal for service on the defendants, together with a copy of the Complaint. In the
event Plaintiff asks the United States Marshal to serve process, the clerk of the court
will make copies of the Complaint for service on the defendants.
8.
The clerk of the court is directed to set the following pro se case
management deadline: March 10, 2017: check for completion of service of process.
DATED this 9th day of November, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

15

Notice Regarding Federal Rule of Civil Procedure 4
Federal Rule of Civil Procedure 4 requires that a defendant be served with the
complaint and a summons. This is to make sure that the parties you are suing have
notice of the lawsuit. Federal Rule of Civil Procedure 4(e) governs service of process
on an individual (i.e., your individual-capacity claims). Federal Rule of Civil
Procedure 4(j) governs service of process on a state (i.e., your official-capacity claim).
In this case, Rule 4(e) and (j) mean copies of the summons and complaint must be
served on: (1) defendants Philips, Black, Malone, Becker, Dykeman, and Laurell
individually; and also (2) the Nebraska Attorney General’s Office or the chief
executive officer for the State of Nebraska as to defendants Nebraska Department of
Health and Human Services and Philips in her official capacity.
You may ask the United States Marshal to serve process, as described in the court’s
order, because you are proceeding in forma pauperis.

*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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