Brown v. Department of Health & Human Services et al

Filing 62

MEMORANDUM AND ORDER - Defendants' Motion for Summary Judgment (Filing No. 43 ) is granted. Defendants' Motion to Strike (Filing No. 54 ) is denied. A separate judgment will be entered. 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
MEE MEE BROWN,
Plaintiff,

8:16CV569

vs.
SHERI DAWSON, Director of
Behavioral Health; JOHN KROLL,
Director of Nursing @ Norfolk Regional
Center; DIANE SCHUMACHER,
Physician Assistant @ Norfolk Regional
Center; AMR BELTAGUI, Personal
Psychiatrist @ Norfolk Regional Center;
LINDA HANSEN, Unit Supervisor @
Norfolk Regional Center; DIANNA
MASTNY, LORI STRONG, DR. JEAN
LANGE, DR. DAVID MITCHELL,
BEVERLY LEUSHEN, and DONNA
CRIST,

MEMORANDUM
AND ORDER

Defendants.
This matter is before the court on the Defendants’ Motion for Summary
Judgment (Filing No. 43) and Defendants’ Motion to Strike (Filing No. 54). For
the reasons that follow, Defendants’ Motion for Summary Judgment is granted,
and Defendants’ Motion to Strike is denied.
I. BACKGROUND
Plaintiff Mee Mee Brown (“Brown”) filed this action pursuant to 42 U.S.C.
§ 1983 against Susan Dawson (“Dawson”), the Nebraska Department of Health
and Human Services (“DHHS”) Director of the Division of Behavioral Health, and
various employees of the Norfolk Regional Center (“NRC”) where Brown was

committed for inpatient sex offender treatment. 1 Brown seeks declaratory,
injunctive, 2 and monetary relief against the defendants in their individual
capacities for denying Brown a medical evaluation by a specialist and estrogen
therapy for gender-identity disorder (“GID”) (deliberate indifference claim);
preventing Brown from advancing in her treatment program in retaliation for
Brown filing lawsuits and contacting the Ombudsman regarding the exercise of her
“transgender rights” (First Amendment retaliation claim); and treating Brown
unfavorably because of her gender non-conformity (equal protection claim).
After a review of the Second Amended Complaint (Filing No. 22) and
Supplemental Second Amended Complaint (Filing No. 23), the court allowed
Brown’s following claims to proceed: (1) deliberate indifference claim against
defendants Diane Schumacher (“Schumacher”) and Amr Beltagui (“Dr. Beltagui”);
(2) First Amendment retaliation claim against defendants John Kroll (“Kroll”),
Linda Hansen (“Hansen”), Dianna Mastny (“Mastny”), Lori Strong (“Strong”),
Jean Laing (“Dr. Laing”), David Mitchell (“Dr. Mitchell”), Beverly Lueshen
(“Lueshen”), and Donna Crist (“Crist”); and (3) equal protection claim against all
defendants. (Filing No. 28 at CM/ECF pp. 9-11, 14.) 3

1

Brown was transferred to the Lincoln Regional Center (“LRC”) on
February 28, 2018. (Filing No. 61.)
2

Brown requests that the court order the defendants to grant her request to
seek medical attention for gender-identity disorder and to receive hormone
treatments. (Filing No. 22 at CM/ECF p. 11.)
3

The court has corrected the spelling of the defendants’ names.

2

II. RELEVANT UNDISPUTED MATERIAL FACTS 4
1.
The DHHS administers the clinical programs and services of the LRC
and the NRC. Neb. Rev. Stat. § 83-101.06.
2.
107.01.

The DHHS supervises the LRC and the NRC. Neb. Rev. Stat. § 83-

3.
The state hospital for the mentally ill established in Madison County,
Nebraska is known as the NRC. Neb. Rev. Stat. § 83-305.
4.
The state hospital for the mentally ill established in Lancaster County,
Nebraska is known as the LRC. Neb. Rev. Stat. § 83-305.

4

The defendants have complied with the court’s local rule by including in
their supporting brief (Filing No. 89 at CM/ECF pp. 2-16) “a separate statement of
material facts about which the moving party contends there is no genuine issue to
be tried and that entitles the moving party to judgment as a matter of law.”
NECivR 56.1(a). Brown has not submitted a brief containing a concise response to
each of the defendants’ statement of material facts, which contains proper
references to the record. See NECivR 56.1(b)(1). Instead, she includes her own
“Statement of Material Facts.” (Filing No. 52 at CM/ECF p. 2.) Although Brown
appears pro se, she is “bound by and must comply with all local and federal
procedural rules.” NEGenR 1.3(g); see also Schooley v. Kennedy, 712 F.2d 372,
373 (8th Cir. 1983) (per curiam) (concluding pro se litigants are not excused from
compliance with procedural and local rules). The court does consider the facts
alleged in Brown’s verified complaints (Filing Nos. 22, 23) and attached exhibits
and Brown’s exhibits (Filing No. 53) filed in support of her opposition to the
summary judgment motion. See Spear v. Dayton’s, 733 F.2d 554, 555-56 (8th Cir.
1984) (“[A] litigant, especially one unrepresented by counsel . . . is [not] under a
duty to repeat his verified allegation in a new affidavit. . . . This is not, in other
words, a case of a plaintiff who simply rested on the unverified allegations of his
pleadings.”).

3

5.
On December 19, 2013, Brown was committed to the DHHS for
inpatient sex offender treatment by the Douglas County Mental Health Board after
being identified as a dangerous, untreated sex offender. (Filing No. 45-2 at
CM/ECF p. 1, ¶ 5; Filing No. 52 at CM/ECF p. 2.)
6.
Brown was a patient at the NRC from December 2013 through
September 2015. (Filing No. 45-2 at CM/ECF p. 2, ¶ 6; Filing No. 52 at CM/ECF
p. 2.)
7.
Brown was a patient at the LRC from September 2015 until Brown’s
readmission to the NRC in October 2016. (Filing No. 45-2 at CM/ECF p. 2, ¶ 7;
Filing No. 52 at CM/ECF p. 2.)
8.
Brown was returned to the NRC because of repeated threats of
aggression and refusal to follow a safety plan after it was discovered that Brown
had been involved in a sexual relationship with a peer. (Filing No. 45-2 at
CM/ECF p. 2, ¶ 8; Filing No. 45-8 at CM/ECF p. 2, ¶ 9; Filing No. 52 at CM/ECF
p. 2.)
Sheri Dawson
9.
At all times relevant, Dawson was the DHHS Director of the Division
of Behavioral Health. (Filing No. 45-1 at CM/ECF p. 1, ¶ 3.)
10. Dawson never personally refused Brown’s requests to have a private
bathroom after male patients allegedly looked under a stall where Brown was using
a toilet. Any decisions regarding these requests would have been made by the NRC
administration. (Filing No. 45-1 at CM/ECF p. 2, ¶ 7.)
11. Dawson never personally refused Brown’s request to dress in
woman’s clothing. Any decisions regarding these requests would have been made
by the NRC administration. (Filing No. 45-1 at CM/ECF p. 2, ¶ 8.)
4

12. Dawson received a written complaint from Brown on November 17,
2016. (Filing No. 45-1 at CM/ECF p. 2, ¶ 9.) Brown referenced filing civil lawsuits
in the complaint. (Filing No. 45-1 at CM/ECF p. 2, ¶ 12, pp. 4-5 (Exhibit A).)
13. Dawson received a written complaint from Brown dated November
28, 2016. (Filing No. 45-1 at CM/ECF p. 2, ¶ 10.) Brown referenced filing civil
lawsuits against DHHS in the complaint. (Filing No. 45-1 at CM/ECF p. 2, ¶ 13,
pp. 6-7 (Exhibit B).)
14. Dawson provided Brown a written response dated December 15,
2016. (Filing No. 45-1 at CM/ECF p. 2, ¶¶ 11, 14, p. 9 (Exhibit C).) Dawson
requested Brown contact the Nebraska Attorney General’s Office regarding the
concerns. (Filing No. 45-1 at CM/ECF p. 9.)
John Kroll
15. Kroll has been the Facility Operating Officer for the NRC since July
1, 2017. Kroll served as the Interim Facility Operating Officer at the NRC from
January 2017 until July 1, 2017. Kroll served as the Director of Nursing at the
NRC from January 1989 to January 2017. (Filing No. 45-2 at CM/ECF p. 1, ¶ 3;
Filing No. 52 at CM/ECF p. 3.)
16. Kroll has been employed by the NRC for approximately 41 years.
(Filing No. 45-2 at CM/ECF p. 1, ¶ 4.)
17. Upon Brown’s readmission to the NRC, Kroll’s involvement with
Brown was mainly through responding to grievances. (Filing No. 45-2 at CM/ECF
p. 2, ¶ 9.)
18. Kroll talked to Brown regarding Brown’s request for a private
bathroom. Brown was not able to provide any reason why a private bathroom was
5

required other than personal preference. Kroll advised Brown that the only time the
NRC approves a patient for a private bathroom is when the patient has a physical
need for a private bathroom. The NRC does not have enough room for Brown to
have a private bathroom. (Filing No. 45-2 at CM/ECF p. 2, ¶ 10.)
19. Brown was provided an order that Brown may use the bathroom on
the unit in private. Other patients on the unit were instructed not to use the
bathroom when Brown was using it. 5 (Filing No. 45-2 at CM/ECF p. 2, ¶ 11.)
20. Brown submitted a grievance about another patient peering under the
toilet stalls while Brown was using a toilet stall in the unit bathroom. Kroll talked
to the patient after Brown submitted the grievance. The patient did not realize he
was not supposed to be in the bathroom while Brown was in a bathroom unit stall.
The patient advised that he would not use the bathroom while Brown was in the
bathroom anymore. Kroll advised Brown of his discussion with the other patient,
and Brown was fine with the resolution of the matter. 6 (Filing No. 45-2 at CM/ECF
p. 2, ¶ 12.)
21. Brown also submitted a complaint that staff member Rose Prather
(“Prather”), a Mental Health Security Specialist, was not enforcing with other

5

In her opposition brief, Brown disputes that she was agreeable to this
arrangement. (Filing No. 52 at CM/ECF p. 5.) Resolution of this dispute is
unnecessary, however, because it does not affect the outcome of the lawsuit.
Indeed, even assuming that Brown was not agreeable to the bathroom arrangement,
it does not create a genuine issue of disputed material fact with respect to any of
the constitutional claims.
6

Any dispute that Brown was satisfied with the resolution of the bathroom
incident is inconsequential because it does not affect the outcome of the lawsuit.
Indeed, even assuming that Brown was not satisfied with the resolution, it does not
create a genuine issue of disputed material fact with respect to any of the
constitutional claims.

6

patients Brown’s order to be allowed to use the bathroom alone. Kroll advised
Prather of the concern about monitoring the bathroom when Brown used it, and
Prather said she was unaware of the order but would work to assist other patients in
not entering the bathroom when Brown was in it. To Kroll’s knowledge, there have
been no further issues regarding Brown having privacy while using the bathroom
on the unit. (Filing No. 45-2 at CM/ECF p. 3, ¶ 12.)
22. Kroll never made an entry in Brown’s treatment file to the mental
health board. It is the treatment team that makes entries in Brown’s treatment file.
Kroll never corresponded with the mental health board about Brown. (Filing No.
45-2 at CM/ECF p. 3, ¶ 13.)
23. Kroll never discussed Brown’s progression in treatment with Brown.
Kroll never refused Brown the ability to progress past Level One in treatment.
Kroll has no influence on Brown’s treatment progression or scoring, or the
treatment progression or scoring of other NCR patients. The progression of
Brown’s treatment is a treatment team decision. (Filing No. 45-2 at CM/ECF p. 3,
¶ 15.)
24. Since being readmitted to the NRC, Brown has been approved to wear
female undergarments and gender neutral outerwear. Brown was agreeable to that
arrangement. (Filing No. 45-2 at CM/ECF p. 3, ¶ 16.)
25. In order to preserve the safety and security of the NRC, Brown is not
approved to wear dresses; midriff, low-cut or see-through shirts or blouses; high
heels; stockings; nylons; or make-up. The NRC is a mental health hospital treating
patients who have difficulty managing sexually deviant thoughts and ideas. The
NRC must prevent patients from making unwanted sexual advances toward other
patients, or inappropriately acting out on their sexual urges. (Filing No. 45-2 at
CM/ECF pp. 3-4, ¶ 17.)

7

26. All patients of the NRC are required to wear appropriate clothing at
all times. Tank tops and sleeveless shirts are only appropriate during participation
in athletic activities and during courtyard time. Net shirts are not allowed. (Filing
No. 45-2 at CM/ECF p. 4, ¶ 18.)
27. All employees, consultants, and students of the NRC are required to
wear appropriate clothing that provides for safety and security needs. Shorts or
skorts are not worn. Crop pants are allowed but must be at mid-calf length or
longer. Spandex pants, leggings, sweat pants, running/workout pants, lounge pants,
or any type of pajama outfits are not allowed. The Personal Development
Supervisor and staff may wear work out gear commensurate with the activities and
expectations of the facilitation of their groups and activities. Shirts/blouses must be
appropriate at all times. No spaghetti straps or tank tops are allowed. No midriff or
cleavage may be exposed. Skirts are appropriate to the responsibilities of the staff’s
position and are not provocative and must be mid-calf or longer. Clothing that is
excessively tight or see-through is not allowed. Footwear that increases the risk of
falling is not allowed. (Filing No. 45-2 at CM/ECF p. 4, ¶ 19.)
28. All NRC patients and visitors are expected to be neatly dressed and
groomed for visits. Visiting may be denied when appropriate clothing is not worn.
Shorts, skorts, mini-skirts, tank tops, low-cut tops, see-through, or other
provocative clothing are not allowed during a visit. (Filing No. 45-2 at CM/ECF p.
4, ¶ 20.)
29. The NRC received a copy of a letter from a judge that Brown had
threatened self-harm. NRC staff met with Brown about the threat of self-harm.
NRC staff did not assess Brown to be self-harmful after the meeting. (Filing No.
45-2 at CM/ECF p. 5, ¶ 21.)
30. Kroll does not recall if Brown spoke to the Ombudsman. Kroll
reviewed the file he has on Ombudsman’s Office Inquiries and found nothing on

8

Brown for 2017 where the Ombudsman’s Office asked Kroll for information on
Brown. (Filing No. 45-2 at CM/ECF p. 5, ¶ 22.)
31. Kroll never prevented Brown from advancing in treatment because
Brown contacted the Ombudsman. (Filing No. 45-2 at CM/ECF p. 5, ¶ 23.)
32. Kroll does not care if Brown contacts the Ombudsman. (Filing No.
45-2 at CM/ECF p. 5, ¶ 24.)
33. Kroll believes Brown has the right to contact the Ombudsman. (Filing
No. 45-2 at CM/ECF p. 5, ¶ 25.)
34. Kroll never prevented Brown from advancing in treatment because
Brown sued him. Kroll has no authority on whether or not Brown advances in
treatment. (Filing No. 45-2 at CM/ECF p. 5, ¶ 26.)
35. Kroll does not remember the date in which he was served with the
lawsuit. (Filing No. 45-2 at CM/ECF p. 5, ¶ 27.)
36. Brown is not the first patient to sue Kroll. (Filing No. 45-2 at
CM/ECF p. 5, ¶ 28.)
37. Kroll is not offended when a patient files a lawsuit against him.
(Filing No. 45-2 at CM/ECF p. 5, ¶ 29.)
38. Kroll believes Brown has the right to file a lawsuit. (Filing No. 45-2 at
CM/ECF p. 5, ¶ 30.)
39. On January 4, 2017, Brown was diagnosed with gender dysphoria at a
Diagnostic Staff Meeting. This diagnosis did not affect any decisions regarding the
clothing which Brown is approved to wear as a patient at the NRC. (Filing No. 452 at CM/ECF p. 5, ¶ 31.)
9

40. On July 6, 2017, Kroll provided a written response to the written
referral request submitted by Dr. Beltagui on December 2, 2016. Kroll advised that
the referral was not approved because the plan was to verify if Brown was
currently being treated with hormone therapy. Kroll stated that Brown provided
information that Brown had been treated by Dr. Walburn at the Nebraska Medical
Center. Kroll advised that the NRC received a letter from Dr. Walburn that Brown
had not been treated with hormone therapy. Kroll stated that the request was
denied due to no verification of patient under hormone therapy. (Filing No. 45-2 at
CM/ECF pp. 5-6, ¶ 32.)
Diane Schumacher
41. Schumacher has been employed at the NRC since December 1995.
(Filing No. 45-3 at CM/ECF p. 1, ¶ 3.)
42. Schumacher is a licensed Physician Assistant in the State of Nebraska.
Schumacher has a Master’s Degree from the University of Nebraska Medical
Center (“UNMC”) Physician Assistant program. Schumacher has a Bachelor’s of
Science from the University of Nebraska-Lincoln (“UNL”) and from UNMC.
(Filing No. 45-3 at CM/ECF p. 1, ¶ 4.)
43. At all times relevant, Schumacher was a Physician Assistant at the
NRC. (Filing No. 45-3 at CM/ECF p. 1, ¶ 5; Filing No. 52 at CM/ECF p. 8.)
44. Schumacher does not recall being involved in the decision making
regarding Brown’s request for a private bathroom. (Filing No. 45-3 at CM/ECF p.
2, ¶ 9; Filing No. 53 at 104-05, Response to Interrogatory No. 15.)
45. Schumacher never denied Brown’s request to take estrogen.
Schumacher recalls discussing Brown’s requests for hormone therapy and estrogen
treatment on several occasions and advising the requests needed to be directed to
10

the psychiatrist. Schumacher recalls advising Brown on several occasions that it
was not a part of her scope of practice to grant requests for hormone therapy or
estrogen treatment. (Filing No. 45-3 at CM/ECF p. 2, ¶ 11; Filing No. 53 at 104,
Responses to Interrogatory Nos. 13, 14.)
46. Schumacher was not aware of Brown having hormone treatment
before Brown was incarcerated. (Filing No. 45-3 at CM/ECF p. 2, ¶ 12.)
47. Schumacher does not recall seeing any documents that showed a
physician had prescribed hormone treatment for Brown. (Filing No. 45-3 at
CM/ECF p. 2, ¶ 13.)
48. Other than Brown’s self-report, Schumacher was not aware of Brown
taking hormone pills prior to being incarcerated. (Filing No. 45-3 at CM/ECF p. 2,
¶ 14.)
49. Several attempts were made by the NRC staff to obtain the medical
records to establish Brown had hormone treatment prior to being incarcerated.
Brown would provide the name of doctors whom Brown claimed performed such
treatments. The NRC would locate the addresses of the doctors and send records
requests to them. The NRC would thereafter receive responses from the doctors
stating no records were found regarding Brown. (Filing No. 45-3 at CM/ECF p. 3,
¶ 15.)
50. In her capacity as a Physician Assistant at the NRC, Schumacher
attended to Brown’s medical needs in the way in which a Physician Assistant is
trained to attend to the medical needs of a patient. (Filing No. 45-3 at CM/ECF p.
3, ¶ 16.)

11

Dr. Amr Beltagui
51. Dr. Beltagui was employed as a Staff Psychiatrist at the NRC from
August 1, 2014 to July 31, 2017. Dr. Beltagui rendered psychiatric care to the NRC
patients to whom he was assigned during this timeframe. (Filing No. 45-4 at
CM/ECF p. 1, ¶ 3.)
52. Dr. Beltagui holds a Bachelor of Medicine and Bachelor of Surgery
(MBChB) degree from the University of Alexandria, Egypt. Dr. Beltagui holds an
Educational Commission for Foreign Medical Graduates (ECFMG) certificate. Dr.
Beltagui holds a Certificate of Residency from the University at Buffalo, State
University of New York. Dr. Beltagui holds a Medical Doctor (MD) degree from
the State University of New York. Dr. Beltagui is Board Certified by the American
Board of Psychiatry and Neurology. (Filing No. 45-4 at CM/ECF p. 1, ¶ 4.)
53. In his capacity as Staff Psychiatrist at the NRC, Dr. Beltagui met with
Brown, initially, on a monthly basis, and then less frequently, during Brown’s first
admission to the NRC from approximately September 2014 until Brown moved to
the Lincoln Regional Center (LRC) in September 2015. Dr. Beltagui met with
Brown, on a weekly basis, for the first eight weeks after Brown’s second admission
to the NRC in October 2016, and then on a monthly basis, until leaving
employment at the NRC in July 2017. (Filing No. 45-4 at CM/ECF p. 2, ¶ 5.)
54. Upon Brown’s readmission to the NRC, Dr. Beltagui approved
Brown’s request to wear female undergarments and gender-neutral outerwear, but
denied Brown’s request to wear female clothing such as dresses, midriff, low-cut
or see-through shirts or blouses, high heels, stockings and nylons, and make-up.
(Filing No. 45-4 at CM/ECF p. 2, ¶ 6.)
55. It is the opinion of Dr. Beltagui that it would be a safety and security
risk for Brown to wear dresses, midriff, low-cut or see-through shirts or blouses,
high heels, stockings and nylons, or make-up at the NRC, because the NRC is an
12

all-male psychiatric hospital treating sex-offenders. It is the opinion of Dr. Beltagui
that wearing such clothing would make Brown a potential target for sexual assault
from other patients. (Filing No. 45-4 at CM/ECF p. 2, ¶ 7.)
56. Dr. Beltagui never disregarded Brown’s request for hormone therapy.
(Filing No. 45-4 at CM/ECF p. 2, ¶ 8; Filing No. 53 at CM/ECF pp. 77-78,
Response to Interrogatory No. 14.)
57. On December 2, 2016, Dr. Beltagui submitted a written referral
request for Brown to see a doctor in Omaha who specializes in transgender care
and hormone therapy in Omaha for an evaluation. (Filing No. 45-4 at CM/ECF p.
2, ¶ 9; Filing No. 53 at CM/ECF pp. 77-78, Response to Interrogatory No. 14, p.
83.)
58. On December 2, 2016, the referral request was denied and Dr.
Beltagui advised Brown of this decision. (Filing No. 45-4 at CM/ECF p. 2, ¶ 10;
Filing No. 53 at CM/ECF p. 83.)
59. A few days later, Dr. Beltagui was advised Brown’s referral was
neither approved nor denied, but that his records from his previous providers, on
the outside, prior to incarceration, were needed, before hormone therapy could be
considered. Dr. Beltagui advised Brown of this decision and explained the initial
denial had been a miscommunication. (Filing No. 45-4 at CM/ECF p. 3, ¶ 11.)
60. Dr. Beltagui believes the initial denial and subsequent requirement for
records prior to a decision on the referral was caused by confusion and was not
intentional. (Filing No. 45-4 at CM/ECF p. 3, ¶ 12.)
61. Brown’s diagnosis was officially amended to include Gender
Dysphoria at the Diagnostic Staff Meeting held on January 4, 2017. (Filing No. 454 at CM/ECF p. 3, ¶ 13.)

13

62. According to the Diagnostic and Statistical Manual V, a Gender
Dysphoria diagnosis involves a difference between one’s experienced/expressed
gender and assigned gender, and significant distress or problems functioning. It
lasts at least six months and is shown by at least two of the following:
a.
b.
c.
d.
e.
f.

A marked incongruence between one’s experienced/expressed
gender and primary and/or secondary sex characteristics;
A strong desire to be rid of one’s primary and/or secondary sex
characteristics;
A strong desire for the primary and/or secondary sex
characteristics of the other gender;
A strong desire to be of the other gender;
A strong desire to be treated as the other gender;
A strong conviction that one has the typical feelings and
reactions of the other gender.

(Filing No. 45-4 at CM/ECF p. 3, ¶ 14.)
63. It is the opinion of Dr. Beltagui that not every individual who carries
the diagnosis of Gender Dysphoria is a candidate for hormone therapy. It was
beyond the scope of Dr. Beltagui’s practice to determine whether Brown was a
candidate for hormone therapy. It is the opinion of Dr. Beltagui such a
determination should be made by a doctor who specializes in transgender care and
hormone therapy after an evaluation. (Filing No. 45-4 at CM/ECF p. 3, ¶ 15.)
64. Dr. Beltagui discussed Brown’s statements regarding contemplating
self-harm in the form of penis mutilation. Dr. Beltagui assessed Brown for the risk
of self-harm upon this discussion. Dr. Beltagui understood from his discussion
with Brown that the self-harm statements were made out of frustration as opposed
to true intent to self-harm. Dr. Beltagui determined Brown was not a risk for selfharm at that time. (Filing No. 45-4 at CM/ECF p. 4, ¶ 16.)

14

65. Other than Brown’s self-report, Dr. Beltagui was not aware of any
information or medical report to show Brown took hormone pills prior to
incarceration. (Filing No. 45-4 at CM/ECF p. 4, ¶ 17.)
66. Brown never mentioned being transgendered or requiring hormone
therapy to Dr. Beltagui during Brown’s first admission to the NRC. (Filing No. 454 at CM/ECF p. 4, ¶ 18.)
Linda Hansen
67. Hansen is a Registered Nurse licensed to practice in the State of
Nebraska. (Filing No. 45-5 at CM/ECF p. 1, ¶ 3.)
68. Hansen is the Nurse Supervisor of 3 West, one of the units on the
Mainstream Treatment Program of the NRC. Hansen has been a Nurse Supervisor
at the NRC for over 30 years. Hansen began supervision in the Sex Offender
Treatment Program at the NRC in approximately 2007. (Filing No. 45-5 at
CM/ECF p. 1, ¶ 4.)
69. Hansen does not personally determine the level assignment for any
patient upon their admission to the NRC. When a patient is admitted to the NRC,
the level assignment is determined by the full treatment team. (Filing No. 45-5 at
CM/ECF p. 2, ¶ 8.)
70. Hansen finds each individual patient progresses in their own way.
Hansen’s job is to observe the behavior of the patients and instruct those under her
supervision to observe the behavior of the patients. This behavior is then reported
to the full treatment team to determine how the patient is progressing in the
program. (Filing No. 45-5 at CM/ECF p. 2, ¶ 9.)

15

71. Hansen was not part of the decision making process regarding what
clothing Brown would be allowed to wear at the NRC. (Filing No. 45-5 at
CM/ECF p. 2, ¶ 11.)
72. Hansen never scored Brown’s treatment plan. Hansen does not
participate in the scoring of Brown’s treatment plan. (Filing No. 45-5 at CM/ECF
p. 2, ¶ 12; Filing No. 53 at 91, Response to Interrogatory No. 17.)
73. Hansen never prevented Brown from advancing in treatment because
Brown contacted the Ombudsman. (Filing No. 45-5 at CM/ECF p. 2, ¶ 13.)
74. Hansen does not recall Brown contacting the Ombudsman’s Office.
(Filing No. 45-5 at CM/ECF p. 2, ¶ 14.)
75. Hansen believes Brown has the right to contact the Ombudsman’s
Office. (Filing No. 45-5 at CM/ECF p. 2, ¶ 15.)
76. Hansen does not care if Brown contacts the Ombudsman’s Office.
(Filing No. 45-5 at CM/ECF p. 2, ¶ 16.)
77. Hansen never prevented Brown from advancing in treatment because
of this lawsuit. (Filing No. 45-5 at CM/ECF p. 3, ¶ 17.)
78. Hansen does not remember when she learned about this lawsuit or
when she was served. (Filing No. 45-5 at CM/ECF p. 3, ¶ 18.)
79. Hansen believes Brown has the right to file a lawsuit. (Filing No. 45-5
at CM/ECF p. 3, ¶ 19.)

16

Dianna Mastny
80. At all times relevant, Mastny was a Registered Nurse licensed to
practice nursing in the State of Nebraska. (Filing No. 45-6 at CM/ECF p. 1, ¶ 3.)
81. Mastny has been employed at the NRC for almost 20 years. (Filing
No. 45-6 at CM/ECF p. 1, ¶ 4.)
82. Mastny is currently a Unit Supervisor for the Motivational Unit at the
NRC. Mastny previously was a Staff Registered Nurse, a License Practicing Nurse,
and a Unit Supervisor on 3-East at the NRC. (Filing No. 45-6 at CM/ECF p. 1, ¶
5.)
83. Mastny has not been involved in any of Brown’s treatment, or any of
the scoring of Brown’s treatment, since Brown was readmitted to the NRC in
October 2016. (Filing No. 45-6 at CM/ECF p. 2, ¶¶ 8, 9; Filing No. 53 at CM/ECF
p. 43, Response to Interrogatory No. 5.)
84. Mastny was not part of Brown’s treatment team when Brown returned
to the NRC. 7 (Filing No. 45-6 at CM/ECF p. 2, ¶ 10.)
85. Mastny was not involved in the decision to start Brown at Level One
when Brown returned to the NRC. (Filing No. 45-6 at CM/ECF p. 2, ¶ 11.)
86. Mastny did not take part in any discussions regarding Brown wearing
female clothing. It was not part of her job duties to have such discussions. (Filing
No. 45-6 at CM/ECF p. 2, ¶ 12.)
7

The defendants’ brief states that “Brown was not part of Mastny’s
treatment team when Brown returned to the NRC,” but the court assumes this is a
typographical error and has corrected it. (Filing No. 45-6 at CM/ECF p. 2, ¶ 10
(emphasis added).)

17

87. Mastny never conspired to give Brown “negative” scores after Brown
talked to the Ombudsman. (Filing No. 45-6 at CM/ECF p. 2, ¶ 14.)
88. Mastny never prevented Brown from advancing in treatment because
Brown contacted the Ombudsman. (Filing No. 45-6 at CM/ECF p. 2, ¶ 15.)
89. Mastny was not aware Brown had contacted the Ombudsman upon
returning to the NRC. (Filing No. 45-6 at CM/ECF p. 2, ¶ 16.)
90. Mastny believes Brown has the right to contact the Ombudsman.
Mastny knows the number for the Ombudsman’s office is posted in several
locations in the NRC. (Filing No. 45-6 at CM/ECF p. 2, ¶ 17.)
91. Mastny does not care if Brown contacts the Ombudsman. (Filing No.
45-6 at CM/ECF p. 3, ¶ 18.)
92. Mastny never prevented Brown from advancing in treatment because
Brown sued her. (Filing No. 45-6 at CM/ECF p. 3, ¶ 19.)
93. Mastny heard about the lawsuit when she received the documents in
the mail on or about June 14, 2017. Mastny does not remember the exact date she
received the documents. (Filing No. 45-6 at CM/ECF p. 3, ¶ 20.)
94. Mastny believes Brown has the right to file a lawsuit. (Filing No. 45-6
at CM/ECF p. 3, ¶ 21.)
Lori Strong
95. At all times relevant, Strong was a Registered Nurse licensed to
practice nursing in the State of Nebraska. (Filing No. 45-7 at CM/ECF p. 1, ¶ 3.)

18

96. Strong has been employed by the NRC as a Nurse Manager since
December 20, 2010. (Filing No. 45-7 at CM/ECF p. 1, ¶ 4.)
97. Strong has not been involved in Brown’s treatment since Brown was
readmitted to the NRC in October 2016. (Filing No. 45-7 at CM/ECF p. 2, ¶¶ 7, 8;
Filing No. 53 at CM/ECF p. 38, Response to Interrogatory No. 15.)
98. It is not within Strong’s authority to determine the treatment level for
any patient upon their admission to the NRC. (Filing No. 45-7 at CM/ECF p. 2, ¶
9.)
99. Strong has not interfered with Brown’s advancement on the treatment
scale. (Filing No. 45-7 at CM/ECF p. 2, ¶ 10)
100. Strong has not refused to allow Brown to wear female clothing. It is
not within Strong’s authority to determine the clothing Brown is allowed to wear at
the NRC. (Filing No. 45-7 at CM/ECF p. 2, ¶ 11.)
101. The only interaction Strong has had with Brown since November 1,
2016 was in August 2017 when Brown would not agree to allow her to administer
Brown’s medications. Strong agreed, the medications were administered by
another nurse, and there was no problem. (Filing No. 45-7 at CM/ECF p. 2, ¶ 12;
Filing No. 53 at CM/ECF p. 37, Response to Interrogatory No. 8.)
102. Strong has not “conspired” against Brown to give “negative scores”
after Brown contacted the Ombudsman. (Filing No. 45-7 at CM/ECF p. 2, ¶ 14.)
103. Strong has not participated in Brown’s scoring since Brown returned
to the NRC. (Filing No. 45-7 at CM/ECF p. 2, ¶ 15; Filing No. 53 at CM/ECF p.
38, Response to Interrogatory No. 15.)

19

104. Strong never prevented Brown from advancing in treatment because
Brown contacted the Ombudsman. (Filing No. 45-7 at CM/ECF p. 2, ¶ 16.)
105. Strong was not aware Brown had contacted the Ombudsman. (Filing
No. 45-7 at CM/ECF p. 2, ¶ 17.)
106. Strong believes Brown has the right to contact the Ombudsman.
(Filing No. 45-7 at CM/ECF p. 3, ¶ 18.)
107. Strong does not care if Brown contacts the Ombudsman. (Filing No.
45-7 at CM/ECF p. 3, ¶ 19.)
108. Strong never prevented Brown from advancing in treatment because
Brown sued her. (Filing No. 45-7 at CM/ECF p. 3, ¶ 20.)
109. Strong does not recall specifically when she learned about this
lawsuit. (Filing No. 45-7 at CM/ECF p. 3, ¶ 21.)
110. Strong believes Brown has the right to file a lawsuit. (Filing No. 45-7
at CM/ECF p. 3, ¶ 22.)
Dr. Jean Laing
111. Dr. Laing has been a Licensed Psychologist in the State of Nebraska
since 1984. (Filing No. 45-8 at CM/ECF p. 1, ¶ 3.)
112. Dr. Laing has been employed at the NRC for approximately 35 years.
(Filing No. 45-8 at CM/ECF p. 1, ¶ 4.)
113. At all times relevant, Dr. Laing served as a Licensed Psychologist at
the NRC. (Filing No. 45-8 at CM/ECF p. 1, ¶ 5.)

20

114. Dr. Laing is not a member of the NRC administration. Dr. Laing is a
clinician and member of the NRC medical staff. (Filing No. 45-8 at CM/ECF p. 2,
¶ 10.)
115. Dr. Laing has not been involved in addressing Brown’s transgender
concerns. (Filing No. 45-8 at CM/ECF p. 2, ¶ 12.)
116. Dr. Laing was a co-facilitator in Brown’s sex offender therapy group
during Brown’s first admission to the NRC from January 2014 to September 2015.
The group met three times a week for approximately 90 minutes a session. During
Brown’s first admission, Dr. Laing was also a co-facilitator of a psychoeducational group addressing cognitive distortions. Brown participated in the
group in July and August of 2014; the group met twice weekly for approximately
60 minutes a session. (Filing No. 45-8 at CM/ECF p. 2, ¶ 13; Filing No. 53 at
CM/ECF pp. 27-28, Response to Interrogatory No. 8.)
117. Brown did not identify transgender issues as a current concern to Dr.
Laing during Brown’s first admission to the NRC. During presentation of the
autobiography assignment in sex offender group in May 2014, Brown reported past
consideration of gender reassignment surgery but decided not to proceed with this
when “[her] kids had kids” and described being “comfortable with who [she]
[was].” (Filing No. 45-8 at CM/ECF p. 2, ¶ 14.)
118. Upon Brown’s readmission to the NRC in October 2016, Dr. Laing
was the assessing practitioner for an Admission Psychological Assessment. A
primary purpose of the assessment was to assist the treatment team in developing
Brown’s initial NRC readmission treatment plan. Dr. Laing met with Brown for 75
minutes on November 1, 2016 and 55 minutes on November 2, 2016 as part of this
assessment. The assessment reviewed the circumstances which led Brown to being
readmitted to the NRC for sex offender treatment, including Brown’s treatment
priorities of managing anger and sexual boundaries with peers. (Filing No. 45-8 at

21

CM/ECF p. 3, ¶ 15; Filing No. 53 at CM/ECF p. 28, Responses to Interrogatory
Nos. 8, 11.)
119. During the assessment, Brown volunteered “doing transgendering” at
the LRC during the time of engaging in sexual behavior with a peer. Brown
volunteered filing “a civil lawsuit against LRC because they were denying [her]
transgendered rights.” Brown reported being approved to wear female
undergarments with gender-neutral outerwear at the LRC. Brown reported
beginning to dress up in mother’s clothing at 8 or 9 and beginning to dress in
women’s clothing at age 16. Brown described taking girls’ clothing to school in a
bag, changing there, and then changing back to the original clothing before going
home. Brown reported wearing “complete drag” after leaving school in the 11th
grade. (Filing No. 45-8 at CM/ECF p. 3, ¶ 16.)
120. Brown reported going to clubs and bars and engaging in prostitution
in drag. Brown reported planning to have gender reassignment surgery, but legal
problems prevented following through with the surgery. Brown reported having
electrolysis in 1989, taking estrogen in the past, and participating in therapy
regarding gender identity and reassignment from 1997 to 2000 and again from
2002 to 2005. (Filing No. 45-8 at CM/ECF p. 3, ¶ 16.)
121. Dr. Laing found the information Brown provided during the
assessment was inconsistent with information from other sources. Brown has
repeatedly identified as homosexual to treatment providers, including upon
readmission to the NRC. Brown’s mother previously reported Brown’s clothing in
high school was distinctive for emulating Michael Jackson. In the course of
presenting an autobiography in sex offender group in May 2014, Brown reported
deciding not to proceed with gender reassignment surgery when “[her] kids had
kids” and Brown stated being “comfortable with who [she] [was].” Brown has
reported having multiple grandchildren. (Filing No. 45-8 at CM/ECF pp. 3-4, ¶
17.)

22

122. At the time of readmission, the general practice for the NRC was for
patients returning from LRC to begin treatment at Level One. No consideration
was given for changing this practice for Brown due to multiple sexual act outs,
threats to staff, and self-reported physical aggression toward a peer while Brown
was a patient at the LRC. (Filing No. 45-8 at CM/ECF p. 4, ¶ 18; Filing No. 53 at
CM/ECF p. 29, Response to Interrogatory No. 12, p. 73.)
123. Due to the inconsistency among Brown’s self-reports and collateral
information from other sources regarding sexual orientation and plans for
addressing gender identity, Dr. Laing did not offer the diagnoses of GID or gender
dysphoria for Brown. (Filing No. 45-8 at CM/ECF p. 4, ¶ 19.)
124. The purpose of Brown’s treatment plan was to focus on maintaining
sexual boundaries with peers and managing anger without aggression so that
Brown could return to the LRC and progress through the program there. (Filing
No. 45-8 at CM/ECF p. 4, ¶ 20.)
125. Dr. Laing never mentioned lawsuits to Brown in the context of
Brown’s treatment progression. (Filing No. 45-8 at CM/ECF p. 4, ¶ 22.)
126. Dr. Laing never addressed Brown’s request for a private bathroom.
(Filing No. 45-8 at CM/ECF p. 5, ¶ 24.)
127. Dr. Laing never prescribed any treatment plan for Brown regarding
GID or gender dysphoria. (Filing No. 45-8 at CM/ECF p. 5, ¶ 25.)
128. Dr. Laing was not involved in the decision making process regarding
whether Brown would be approved to wear feminine clothing or make-up while a
patient at the NRC. (Filing No. 45-8 at CM/ECF p. 5, ¶ 26.)
129. Dr. Laing was not involved in the level scoring done in conjunction
with Brown’s treatment plan after Brown’s readmission to the NRC in October
23

2016. (Filing No. 45-8 at CM/ECF p. 5, ¶ 27; Filing No. 53 at CM/ECF p. 29,
Response to Interrogatory No. 15.)
130. Dr. Laing was not involved in the decision making process regarding
whether Brown would be allowed to have a medical evaluation by a specialist for
GID or gender dysphoria or estrogen therapy. (Filing No. 45-8 at CM/ECF p. 5, ¶
28.)
131. Dr. Laing never prevented Brown from advancing in treatment
because Brown contacted the Ombudsman. (Filing No. 45-8 at CM/ECF p. 5, ¶
29.)
132. Dr. Laing was not aware Brown contacted the Ombudsman. (Filing
No. 45-8 at CM/ECF p. 5, ¶ 30.)
133. Dr. Laing does not care if Brown contacts the Ombudsman. (Filing
No. 45-8 at CM/ECF p. 5, ¶ 31.)
134. Dr. Laing believes Brown has the right to contact the Ombudsman.
(Filing No. 45-8 at CM/ECF p. 5, ¶ 32.)
135. Dr. Laing never prevented Brown from advancing in treatment
because Brown sued her. (Filing No. 45-8 at CM/ECF p. 5, ¶ 33.)
136. Dr. Laing learned of this lawsuit when she was served on June 16,
2017. (Filing No. 45-8 at CM/ECF p. 5, ¶ 34.)
137. Dr. Laing believes Brown has the right to file a lawsuit. (Filing No.
45-8 at CM/ECF p. 5, ¶ 35.)

24

Dr. David Mitchell
138. At all times relevant, Dr. Mitchell was a Clinical Psychologist at the
NRC. (Filing No. 45-9 at CM/ECF p. 1, ¶ 3.)
139. Dr. Mitchell has been employed at the NRC since September 1, 2009.
(Filing No. 45-9 at CM/ECF p. 1, ¶ 4.)
140. There is no such position as “scoring coordinator” at the NRC. (Filing
No. 45-9 at CM/ECF p. 2, ¶ 7; Filing No. 53 at CM/ECF p. 67, Response to
Interrogatory No. 6.)
141. Dr. Mitchell is not part of the NRC administration. Dr. Mitchell is part
of the NRC medical staff. (Filing No. 45-9 at CM/ECF p. 2, ¶ 8.)
142. Dr. Mitchell was one of the group facilitators for Brown’s sex
offender therapy group from October 2016 through July 1, 2017. (Filing No. 45-9
at CM/ECF p. 2, ¶ 9.)
143. Dr. Mitchell and the sex offender therapy group would discuss
Brown’s filing of lawsuits in a therapeutic context. (Filing No. 45-9 at CM/ECF p.
2, ¶¶ 12-13.)
144. Dr. Mitchell does not recall ever discussing scoring with Brown.
(Filing No. 45-9 at CM/ECF p. 2, ¶ 14.)
145. Dr. Mitchell had no part in determining whether Brown was allowed
to dress as a women at the NRC. Dr. Mitchell was not part of Brown’s treatment
team. (Filing No. 45-9 at CM/ECF pp. 2-3, ¶ 15.)

25

146. Dr. Mitchell never prevented Brown from advancing in treatment
because Brown contacted the Ombudsman. (Filing No. 45-9 at CM/ECF p. 3, ¶
16.)
147. Dr. Mitchell believes it is Brown’s right to contact the Ombudsman.
(Filing No. 45-9 at CM/ECF p. 3, ¶ 17.)
148. Dr. Mitchell does not care if Brown contacts the Ombudsman. (Filing
No. 45-9 at CM/ECF p. 3, ¶ 18.)
149. Dr. Mitchell never prevented Brown from advancing in treatment
because Brown filed a lawsuit against him. (Filing No. 45-9 at CM/ECF p. 3, ¶ 19.)
150. Dr. Mitchell does not remember the exact date he received the
lawsuit. (Filing No. 45-9 at CM/ECF p. 3, ¶ 20.)
151. Dr. Mitchell believes Brown has the right to file a lawsuit. (Filing No.
45-9 at CM/ECF p. 3, ¶ 21.)
Beverley Lueshen
152. Lueshen has been employed at the NRC since September of 1986.
(Filing No. 45-10 at CM/ECF p. 1, ¶ 3.)
153. Lueshen is a Licensed Mental Health Practitioner and Licensed Drug
and Alcohol Counselor in the State of Nebraska. Lueshen has held these positions
for approximately 19 years. (Filing No. 45-10 at CM/ECF p. 1, ¶ 4.)
154. Lueshen is not part of the NRC administration. Lueshen is a clinician
and part of the NRC psychology staff. (Filing No. 45-10 at CM/ECF p. 2, ¶ 8.)

26

155. Lueshen was not part of the decision making process as to whether
Brown would be allowed to wear female clothing at the NRC. (Filing No. 45-10 at
CM/ECF p. 2, ¶ 10.)
156. Lueshen never prevented Brown from advancing in treatment because
Brown contacted the Ombudsman. (Filing No. 45-10 at CM/ECF p. 2, ¶ 11.)
157. Lueshen was not aware Brown claimed to have contacted the
Ombudsman until she received the lawsuit. (Filing No. 45-10 at CM/ECF p. 2, ¶
12.)
158. Lueshen believes Brown has the right to contact the Ombudsman.
(Filing No. 45-10 at CM/ECF p. 2, ¶ 13.)
159. Lueshen does not care if Brown contacts the Ombudsman. (Filing No.
45-10 at CM/ECF p. 2, ¶ 14.)
160. Lueshen never prevented Brown from advancing in treatment because
Brown sued her. (Filing No. 45-10 at CM/ECF p. 2, ¶ 15.)
161. Lueshen does not specifically recall when she learned about the
lawsuit, or when she was served with the lawsuit. (Filing No. 45-10 at CM/ECF p.
3, ¶ 16.)
162. Lueshen believes Brown has the right to file a lawsuit. (Filing No. 4510 at CM/ECF p. 3, ¶ 17.)
Donna Crist
163. Crist was employed at the NRC from July 1999 to December 2001.
Crist has been employed with the NRC since December 2012. (Filing No. 45-11 at
CM/ECF p. 1, ¶ 3.)
27

164. At all times relevant, Crist was employed as a Licensed Registered
Nurse at the NRC. (Filing No. 45-11 at CM/ECF p. 1, ¶ 4.)
165. Crist never prevented Brown from advancing in treatment because
Brown contacted the Ombudsman. (Filing No. 45-11 at CM/ECF p. 2, ¶ 10.)
166. Crist was not aware Brown contacted the Ombudsman. (Filing No.
45-11 at CM/ECF p. 2, ¶ 11.)
167. Crist does not care if Brown contacted the Ombudsman. (Filing No.
45-11 at CM/ECF p. 2, ¶ 12.)
168. Crist believes Brown has the right to contact the Ombudsman. (Filing
No. 45-11 at CM/ECF p. 2, ¶ 13,)
169. Crist never prevented Brown from advancing in treatment because
Brown sued her. (Filing No. 45-11 at CM/ECF p. 2, ¶ 14.)
170. Crist does not remember when she first learned about the lawsuit.
(Filing No. 45-11 at CM/ECF p. 2, ¶ 15.)
171. Crist was served with the lawsuit sometime in June of 2016. (Filing
No. 45-11 at CM/ECF p. 2, ¶ 16.)
172. It does not bother Crist that Brown filed a lawsuit. (Filing No. 45-11
at CM/ECF p. 2, ¶ 17.)
173. Crist believes Brown has the right to file a lawsuit. (Filing No. 45-11
at CM/ECF p. 2, ¶ 18.)

28

Brown alleges that defendants Kroll, Hansen, Mastny, Strong, Dr. Laing, Dr.
Mitchell, Lueshen, and Crist made certain defamatory, harassing, or belittling
statements to Brown and/or told her she would not progress in treatment to the
LRC if she continued “exercising female characteristics” or voicing her
transgender rights. These defendants deny making such statements. Resolution of
whether these statements were in fact made, however, is unnecessary, because the
statements, taken as true, do not create a genuine issue of disputed material fact
with respect to any of the constitutional claims before the court on summary
judgment.
III. ANALYSIS
A. Standard of Review
Summary judgment should be granted only “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). It is not the court’s function to weigh
evidence in the summary judgment record to determine the truth of any factual
issue. Schilf v. Eli Lilly & Co., 687 F.3d 947, 949 (8th Cir. 2012). In passing upon
a motion for summary judgment, the district court must view the facts in the light
most favorable to the party opposing the motion. Dancy v. Hyster Co., 127 F.3d
649, 652-53 (8th Cir. 1997).
In order to withstand a motion for summary judgment, the nonmoving party
must substantiate allegations with “‘sufficient probative evidence [that] would
permit a finding in [his] favor on more than mere speculation, conjecture, or
fantasy.’” Moody v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting
Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). “A mere scintilla
of evidence is insufficient to avoid summary judgment.” Id. Essentially, the test is
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
29

A party opposing summary judgment “may not rest upon the mere allegation
or denials of his pleading, but must set forth specific facts showing that there is a
genuine issue for trial, and must present affirmative evidence in order to defeat a
properly supported motion for summary judgment.” Ingrassia v. Schafer, 825 F.3d
891, 896 (8th Cir. 2016) (quoting Anderson, 477 U.S. at 256-57 (quotations
omitted); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-60 (1970).
B. Qualified Immunity
Defendants argue that they are entitled to summary judgment because they
are immune from suit in their individual capacities under the doctrine of qualified
immunity. “Qualified immunity shields government officials from liability for civil
damages and the burdens of litigation ‘insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.’” McKenney v. Harrison, 635 F.3d 354, 358 (8th Cir. 2011)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Stated another way,
qualified immunity shields a defendant from suit if he or she could have reasonably
believed his or her conduct to be lawful in light of clearly established law and the
information that the defendant possessed.” Smithson v. Aldrich, 235 F.3d 1058,
1061 (8th Cir. 2000) (internal quotation and citation omitted). “The qualified
immunity standard gives ample room for mistaken judgments by protecting all but
the plainly incompetent or those who knowingly violate the law.” Id.
Qualified immunity requires a two-part inquiry: (1) whether the facts shown
by the plaintiff make out a violation of a constitutional or statutory right, and (2)
whether that right was clearly established at the time of the defendant’s alleged
misconduct. Nance v. Sammis, 586 F.3d 604, 609 (8th Cir. 2009). If no reasonable
fact-finder could answer yes to both of these questions, the official is entitled to
qualified immunity. Id. “Courts may exercise their discretion in deciding which of
the two prongs of the qualified immunity analysis should be addressed first.” Akins
v. Epperly, 588 F.3d 1178, 1183 (8th Cir. 2009).
30

Accordingly, in reviewing this motion, the court will first examine whether
the facts as alleged by Brown reasonably show that the individually-named
defendants have violated Brown’s constitutional rights. If the facts do not show a
violation, the court need not proceed further with the qualified immunity analysis.
C. Deliberate Indifference Claim
Brown alleges that defendants Dr. Beltagui and Schumacher were
deliberately indifferent to her serious medical need (GID) by denying her a
medical evaluation by a specialist and estrogen therapy. 8
Where a civilly-committed patient’s Fourteenth Amendment claim is for
constitutionally deficient medical care, the Eighth Circuit applies 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 v. Vincenz, 382
F.3d 870, 874 (8th Cir. 2004) (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

8

The court notes that Brown has requested that the court order defendants to
grant her request to seek medical attention for gender-identity disorder and to
receive hormone treatments. (Filing No. 22 at CM/ECF p. 11.) However, Brown
was transferred to the LRC on February 28, 2018. (Filing No. 61.) As a result of
Brown’s transfer from the NRC to the LRC, she cannot recover any injunctive
relief to medical treatment at the NRC. See Randolph v. Rodgers, 170 F.3d 850,
856-57 (8th Cir. 1999) (injunctive relief may not be obtained to improve conditions
at a facility from which the plaintiff has been transferred or released).

31

concerns as that of a prisoner”). Therefore, while Brown is not a prisoner, Eighth
Amendment standards apply to her claim. 9
In order to prevail on this claim, Brown must demonstrate that (1) she
suffered from an objectively serious medical need, and (2) the defendants knew of,
9

The Eighth Circuit Court of Appeals has applied this Eighth Amendment
analysis to claims similar to Brown’s, as have the United States Supreme Court
and courts in other jurisdictions. See 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 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, 908-09 (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).

32

but deliberately disregarded, that need. 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.
(internal quotation marks and citations omitted).
Dr. Beltagui
The evidence demonstrates that it was beyond the scope of Dr. Beltagui’s
practice to determine whether Brown was a candidate for hormone therapy. (Filing
No. 45-4 at CM/ECF p. 3, ¶ 15.) In addition, there is no evidence, other than
Brown’s self-reports, indicating that Brown took hormone pills before
incarceration. (Filing No. 45-4 at CM/ECF p. 4, ¶ 17.) Brown never mentioned
being transgendered or requiring hormone therapy to Dr. Beltagui during Brown’s
first admission to the NRC. (Filing No. 45-4 at CM/ECF p. 4, ¶ 18.) Dr. Beltagui
explained that not every individual who carries the diagnosis of gender dysphoria
is a candidate for hormone therapy, and that such a determination should be made
by a doctor who specializes in transgender care and hormone therapy after an
evaluation. 10 (Filing No. 45-4 at CM/ECF p. 4, ¶ 15.) As such, on December 2,
2016 (before Brown was diagnosed with gender dysphoria), Dr. Beltagui submitted
10

Case law does not establish that an inmate is automatically entitled to
hormone treatment for gender dysphoria. See Reid, 808 F.3d at 1193 (no Eighth
Amendment violation when prison officials refused to provide hormonereplacement 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); White, 849 F.2d at 327 (Courts that have addressed
the issue have concluded that inmates do not have a constitutional right to hormone
therapy.”).

33

a written referral request for Brown to see a doctor in Omaha who specializes in
transgender care and hormone therapy for an evaluation. (Filing No. 45-4 at
CM/ECF p. 2, ¶ 9; Filing No. 53 at CM/ECF pp. 77-78, Response to Interrogatory
No. 14, p. 83.)
The referral request was handled as follows:
The request was discussed at the Clinical Directors Meeting of that
same date. The decision of the meeting was to refer the matter to the
Sex-Offender Council so that Behavior Health Director, Sherri
Dawson, and Interim Regional Centers Administrator, Stacey WerthSweeny, could participate in the discussion. Dawson and Sweeny
were scheduled to be present at the NRC that day and would be in the
Sex-Offender Council Meeting to occur that day. I was not present at
the meeting but was later informed by NRC Clinical Director, Stephen
O’Neill, M.D., that Brown’s referral had been denied. I advised
Brown of this decision. A few days later, however, I was further
informed by the at-the-time NRC Facility Operating Officer, Tylynne
Bauer, that Brown’s referral request had not actually been denied or
approved; rather, the request remained pending while it was
determined whether Brown had been on hormone therapy before
becoming a resident of the NRC. I advised Brown of this clarification
and explained the initial denial had been a miscommunication as there
was a need to gather more information. I believe the initial denial was
a miscommunication and not intentional. Brown had reported that
[s]he had been treated by Dr. Walburn for hormone therapy prior to
coming to the NRC, but the NRC received a letter from Dr. Walburn
indicating Brown had not been treated for hormone therapy. On July
16, 2017, NRC Facility Operating Officer, John Kroll, provided a
written response to the referral request. Kroll’s written response
detailed that the request was not approved at first because the plan
was to verify if Brown had previously been treated with hormone
therapy before coming to the NRC. Kroll’s response went on to
reiterate the circumstances regarding Dr. Walburn’s letter stating that
he had not treated Brown with hormone therapy. Kroll’s response
concluded by denying the referral request on the basis that there was
no verification that Brown had been under hormone therapy before
coming to the NRC.
34

(Filing No. 53 at CM/ECF pp. 78-79, Response to Interrogatory No. 15.)
This evidence demonstrates that Dr. Beltagui did not disregard Brown’s
medical needs or deny treatment for her gender non-conformity or gender
dysphoria. To the contrary, even before Brown was diagnosed with gender
dysphoria and despite no indication Brown had taken hormones in the past, Dr.
Beltagui requested that Brown be referred to a specialist for the purpose of
determining whether she was a candidate for hormone treatment. The referral
request was ultimately denied, but not by Dr. Beltagui. 11 Thus, although Brown
was denied an evaluation by a specialist for purposes of determining whether
hormone treatment was appropriate, the evidence indicates that Dr. Beltagui was
not involved in the decision to deny the evaluation. Drawing all inferences in favor
of Brown, Dr. Beltagui is entitled to summary judgment because Brown presented
no evidence to support that Dr. Beltagui participated in the decision to deny Brown
a medical evaluation by a specialist and estrogen therapy.
Schumacher
Similarly, there is no evidence that Schumacher, a physician assistant,
denied Brown a medical evaluation by a specialist and estrogen therapy.
Schumacher had no documentation indicating that Brown had received or been
prescribed hormone treatment before incarceration. (Filing No. 45-3 at CM/ECF p.
2, ¶¶ 12-15.) Schumacher advised Brown that her requests for hormone therapy
and estrogen treatment needed to be directed to the psychiatrist, because it was not
a part of her scope of practice to grant such requests. (Filing No. 45-3 at CM/ECF
11

Brown has failed to assert a deliberate indifference claim against any
individual involved in the decision to deny the referral request. See Hicklin v.
Precynthe, No. 4:16-CV-01357-NCC, 2018 WL 806764, at *11 (E.D. Mo. Feb. 9,
2018) (“The denial of hormone therapy based on a blanket rule, rather than an
individualized medical determination, constitutes deliberate indifference in
violation of the Eighth Amendment.” (citing cases)).

35

p. 2, ¶ 11; Filing No. 53 at 104, Responses to Interrogatory Nos. 13, 14.) As
discussed above, the evidence reflects that Brown’s request was referred to Dr.
Beltagui, a psychiatrist, who then submitted a referral request, which was denied.
Drawing all inferences in favor of Brown, Schumacher is entitled to summary
judgment because Brown presented no evidence to support that Schumacher was
involved in the decision to deny Brown an evaluation by a specialist for hormone
treatment.
D. First Amendment Retaliation Claim
Brown claims that defendants Kroll, Hansen, Mastny, Strong, Dr. Laing, Dr.
Mitchell, Lueshen, and Crist have prevented her from advancing in her treatment
program in retaliation for Brown filing lawsuits and contacting the Ombudsman
regarding the exercise of her “transgender rights.” (Filing No. 28 at CM/ECF p. 11,
14.)
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. Peterson v. Kopp, 754 F.3d
594, 602 (8th Cir. 2014); Revels, 382 F.3d at 876; Naucke v. City of Park Hills,
284 F.3d 923, 927-28 (8th Cir. 2002). The retaliatory conduct itself need not be a
constitutional violation; the violation is acting in retaliation for the exercise of a
constitutionally protected right. Spencer v. Jackson Cnty., 738 F.3d 907, 911 (8th
Cir. 2013). 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)).
Defendants Kroll, Hansen, Mastny, Strong, Dr. Laing, Dr. Mitchell,
Lueshen, and Crist do not dispute that filing a lawsuit or contacting the
36

Ombudsman constitutes engagement in an activity protected under the First
Amendment. It is well established that the right to file a legal action is protected
under the First Amendment. Spencer, 738 F.3d at 911. The law is also settled that
as a general matter the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions for speaking out. Peterson, 754 F.3d
at 602. These defendants do dispute, however, that Brown can prove the other two
essential elements of her retaliation claims.
There is no evidence, beyond Brown’s own allegations, that the defendants
were motivated to take adverse action based on Brown filing lawsuits and
contacting the Ombudsman regarding the exercise of her “transgender rights.” See
id. (under the third prong of the First Amendment retaliation claim test, a plaintiff
must show that the retaliatory motive was a “substantial factor” or “but-for cause”
of the adverse action; in other words, a plaintiff must show he or she was singled
out because of exercise of constitutional rights). The defendants presented
evidence, which Brown has not properly disputed, that the defendants knew Brown
had a right to file lawsuits and to contact the Ombudsman and did not care whether
Brown exercised those rights. There is also no evidence that any action by the
defendants prevented Brown from exercising her First Amendment rights. See
Garcia v. City of Trenton, 348 F.3d 726, 728-29 (8th Cir. 2003). Indeed, Brown
has continued to exercise her First Amendment rights by filing complaints,
grievances, and/or lawsuits. See, e.g., Brown v. Kroll, 8:17CV0294 (D. Neb.).
Brown has cited no evidence to support her argument that her placement at
treatment Level One upon her return to the NRC was in retaliation for filing
lawsuits or contacting the Ombudsman. Rather, the evidence establishes that, when
a patient is readmitted to the NRC from the LRC, the general practice is for
patients to begin treatment at Level One. (Filing No. 45-8 at CM/ECF p. 4, ¶ 18.)
The evidence shows that no consideration was given for changing this practice for
Brown due to her multiple sexual act outs, threats to staff, and self-reported
physical aggression toward a peer while she was a patient at the LRC. (Filing No.
45-8 at CM/ECF p. 4, ¶ 18.) Further, because the patients do not progress in
37

treatment in the same fashion, Brown cannot establish retaliatory action by simply
alleging that certain patients have progressed through treatment more quickly than
she has.
Brown bases much of her retaliation claim on allegations that several of the
defendants told her that she would not progress in treatment if she continued to
speak out about her transgender rights or continued to exercise “female
characteristics.” The defendants dispute making these comments. Regardless, even
if these comments are taken as true, they do not establish that the defendants in fact
prevented Brown from progressing in treatment in retaliation for her exercising her
transgender rights.
The defendants have presented affidavit evidence, discussed below,
demonstrating that they did not participate in Brown’s treatment decisions or
treatment plan scoring and/or did not prevent Brown from progressing in treatment
in retaliation for Brown exercising her First Amendment rights:
Kroll
Upon Brown’s readmission to the NRC, Kroll’s involvement with Brown
was mainly through responding to grievances. (Filing No. 45-2 at CM/ECF p. 2, ¶
9.) Kroll had no authority or influence on Brown’s treatment progression or
scoring and was not responsible for making entries in Brown’s treatment file.
(Filing No. 45-2 at CM/ECF p. 3, ¶¶ 13, 15, 26.) The treatment team, of which
Kroll was not a member, was responsible for making decisions regarding Brown’s
treatment progression and making entries in Brown’s treatment file. (Filing No. 452 at CM/ECF p. 3, ¶¶ 13, 15.) Beyond Brown’s own allegations, there is no
evidence that Kroll circumvented the treatment team and refused Brown the ability
to progress past treatment Level One or made an entry in Brown’s treatment file to
the mental health board. Indeed, the evidence shows that Kroll never corresponded
with the mental health board about Brown. (Filing No. 45-2 at CM/ECF p. 3, ¶ 13.)

38

Hansen
Hansen does not individually determine the level assignment for any patient
upon their admission to the NRC. (Filing No. 45-5 at CM/ECF p. 2, ¶ 8.) Rather,
when a patient is admitted to the NRC, the level assignment is determined by the
full treatment team. (Filing No. 45-5 at CM/ECF p. 2, ¶ 8.) As set forth above, the
NRC’s general practice is to begin treatment at Level One when a patient is
readmitted to the NRC from the LRC and no consideration was given for changing
this practice for Brown due to her multiple sexual act outs, threats to staff, and selfreported physical aggression toward a peer while she was a patient at the LRC.
(Filing No. 45-8 at CM/ECF p. 4, ¶ 18; Filing No. 53 at CM/ECF p. 29, Response
to Interrogatory No. 12, p. 73.) Hansen never scored, or participated in the scoring
of, Brown’s treatment plan. (Filing No. 45-5 at CM/ECF p. 2, ¶ 12; Filing No. 53
at 91, Response to Interrogatory No. 17.)
Mastny
After Brown’s readmission to the NRC, Mastny was not involved in the
decision to start Brown at Level One, was not involved in any of Brown’s
treatment or scoring of Brown’s treatment, was not part of Brown’s treatment
team, and did not conspire to give Brown “negative” scores after Brown talked to
the Ombudsman. (Filing No. 45-6 at CM/ECF p. 2, ¶¶ 9-11, 14; Filing No. 53 at
CM/ECF p. 43, Response to Interrogatory No. 5.)
Strong
After Brown’s readmission to the NRC, Strong was not involved in Brown’s
treatment, did not participate in Brown’s treatment scoring, did not conspire
against Brown to give her “negative scores,” and did not interfere with Brown’s
advancement on the treatment scale. (Filing No. 45-7 at CM/ECF p. 2, ¶¶ 8, 10, 14,
15; Filing No. 53 at CM/ECF p. 38, Response to Interrogatory No. 15, p. 38,
Response to Interrogatory No. 15.) Indeed, Strong does not have the authority to
39

determine the treatment level for any patient upon their admission to the NRC.
(Filing No. 45-7 at CM/ECF p. 2, ¶ 9.) Furthermore, the only interaction Strong
had with Brown after her readmission to the NRC was in August 2017 when
Brown would not allow Strong to administer Brown’s medications. (Filing No. 457 at CM/ECF p. 2, ¶ 12; Filing No. 53 at CM/ECF p. 37, Response to Interrogatory
No. 8.) The medications were then administered by another nurse without any
problem. (Filing No. 45-7 at CM/ECF p. 2, ¶ 12; Filing No. 53 at CM/ECF p. 37,
Response to Interrogatory No. 8.)
Dr. Laing
Dr. Laing assisted the treatment team in developing Brown’s initial NRC
readmission treatment plan, including starting Brown’s treatment at Level One
based on the NRC’s general practice and on Brown’s multiple sexual act outs,
threats to staff, and self-reported physical aggression toward a peer while a patient
at the LRC. (Filing No. 45-8 at CM/ECF p. 3, ¶ 15, p. 4, ¶ 18.) Dr. Laing was not
involved in the level scoring related to Brown’s treatment plan after Brown’s
readmission to the NRC. (Filing No. 45-8 at CM/ECF p. 5, ¶ 27.)
Dr. Mitchell
Dr. Mitchell was not part of Brown’s treatment team and has not prevented
Brown from advancing in treatment. (Filing No. 45-9 at CM/ECF p. 2, ¶ 15, p. 3, ¶
19.) Brown is not the “scoring coordinator”; there is no such position at the NRC.
(Filing No. 45-9 at CM/ECF p. 2, ¶ 7.)
Lueshen
Lueshen is not part of the NRC administration. (Filing No. 45-10 at
CM/ECF p. 2, ¶ 8.) She never prevented Brown from advancing in treatment
because Brown contacted the Ombudsman or filed this lawsuit. (Filing No. 45-10
at CM/ECF p. 2, ¶¶ 11, 15.)
40

Crist
Crist never prevented Brown from advancing in treatment because Brown
contacted the Ombudsman or filed this lawsuit. (Filing No. 45-11 at CM/ECF p. 2,
¶¶ 10, 14.)
Brown has failed to properly dispute this evidence.
To survive summary judgment on her retaliation claim, Brown must present
evidence of a causal connection between constitutionally protected activity and an
adverse action. There is nothing to show any action of any of the defendants was at
all motivated by Brown’s engagement in an activity protected under the First
Amendment. Brown simply presumes retaliation based on nothing more than
conclusory statements. There is no evidence any of the defendants treated Brown
any differently than any other NRC patient due to Brown’s exercise of
constitutional rights.
E. Equal Protection Claim
Last, Brown claims that all the defendants violated the Equal Protection
Clause’s prohibition against sex-based discrimination when they treated her
unfavorably because of her gender non-conformity. Brown’s equal protection
claims focus on the denial of her request for certain female clothing and items,
disparate treatment progression, and the denial of her request for a private
bathroom.
The Equal Protection Clause of the Fourteenth Amendment provides that no
State shall “deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. The purpose of the Equal Protection Clause
“is to secure every person within the State’s jurisdiction against intentional and
arbitrary discrimination.” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 611
41

(2008) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per
curiam)). Proof that discriminatory intent was a motivating factor is required to
show a violation of the Equal Protection Clause. Arlington Heights v. Metro Hous.
Dev. Corp., 429 U.S. 252, 265-66 (1977).
An equal protection claim may be established in two ways. The first requires
a plaintiff to “show that the defendants acted with an intent or purpose to
discriminate against the plaintiff based upon membership in a protected class.”
Washington v. Davis, 426 U.S. 229, 239-40 (1976). If the claims do not involve a
suspect classification, a plaintiff can establish an equal protection “class of one”
claim by alleging that she “has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.”
Olech, 528 U.S. at 564; see also Flowers v. City of Minneapolis, 558 F.3d 794, 798
(8th Cir. 2009). To prevail under this theory, a plaintiff must show that (1) he or
she is a member of an identifiable class; (2) he or she was intentionally treated
differently from others similarly situated; and (3) there is no rational basis for the
difference in treatment. Olech, 528 U.S. at 564.
The Supreme Court has not decided whether transgender individuals
constitute a protected or “suspect class.” See Campbell v. Bruce, No. 17-CV-775JDP, 2017 WL 6334221, at *3 (W.D. Wis. Dec. 1, 2017) (“Neither the Seventh
Circuit nor the Supreme Court has determined whether transgender individuals
constitute a protected class.”); Bd. of Educ. of the Highland Local Sch. Dist. v.
United States Dep’t of Educ., 208 F. Supp. 3d 850, 872 (S.D. Ohio 2016) (“The
Supreme Court has not decided whether transgender status is a quasi-suspect class
under the Equal Protection Clause.”); Denegal v. Farrell, No. 1:15-cv-1251, 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 “[c]ourts in this circuit have reached differing
conclusions as to the level of scrutiny to be applied.”).

42

This case, however, does not require the court to reach the question of
whether transgender status is per se entitled to heightened scrutiny. No matter what
level of scrutiny applies, the defendants’ treatment of Brown must be balanced
against penological or institutional interests like safety and protection from
violence. See 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”).
Upon Brown’s readmission to the NRC, Brown was approved to wear
female undergarments and gender neutral outerwear, but her request to wear
female clothing such as dresses, midriff, low-cut or see-through shirts or blouses,
high heels, stockings and nylons, and make-up was denied. (Filing No. 45-2 at
CM/ECF p. 3, ¶ 16; Filing No. 45-4 at CM/ECF p. 2, ¶ 6.) Brown’s gender
dysphoria diagnosis did not affect any decisions regarding the clothing which
Brown was approved to wear as a patient at the NRC. (Filing No. 45-2 at CM/ECF
p. 5, ¶ 31.)
The evidence demonstrates that the denial of certain female clothing and
items was based on the NRC’s interest in ensuring patients’ safety and protection
from violence. The NRC is a mental health hospital treating patients who have
difficulty managing sexually deviant thoughts and ideas. (Filing No. 45-2 at
CM/ECF pp. 3-4, ¶ 17.) The NRC must prevent patients from making unwanted
sexual advances toward other patients, or inappropriately acting out on their sexual
urges. (Filing No. 45-2 at CM/ECF p. 4, ¶ 17.) If allowed to wear dresses, midriff,
low-cut or see-through shirts or blouses, high heels, stockings and nylons, or make-

43

up, there was concern that Brown could become a potential target for sexual
assault from other patients. (Filing No. 45-4 at CM/ECF p. 2, ¶ 7.)
The NRC’s institutional-wide interest in safety is demonstrated by the fact
that NRC employees are not allowed to wear shorts, skorts, spandex pants,
leggings, spaghetti straps, tank tops, or clothing that is excessively tight, seethrough, or exposes midriff or cleavage. (Filing No. 45-2 at CM/ECF p. 4, ¶ 19.) In
furtherance of these interests, all NRC patients and visitors are expected to be
neatly dressed and groomed, and all NRC visitors are prevented from wearing
shorts, skorts, mini-skirts, tank tops, low-cut tops, see-through, or other
provocative or inappropriate clothing during a visit. (Filing No. 45-2 at CM/ECF p.
4, ¶ 20.)
Thus, the undisputed evidence establishes that the NRC had a rational, nondiscriminatory basis for regulating resident attire and denying Brown’s request for
certain feminine clothing and items.
Brown also claims disparate treatment based on the defendants’ alleged
favoritism toward other patients with respect to treatment classification and
progression. Brown complains that while she was classified at treatment Level One
when she was transferred from the LRC to the NRC, two other patients who were
forced to transfer to NRC started at Levels 2 and 3, despite the fact that one of
these patients hit an LRC staff member and the other threatened an LRC staff
member’s family. (Filing No. 22 at CM/ECF p. 7.)
“[C]lass-of-one” equal protection claims may not apply to state action that
involves “‘discretionary decision making based on a vast array of subjective,
individualized assessments . . . because treating like individuals differently is an
accepted consequence of the discretion granted.’” Robbins v. Becker, 794 F.3d
988, 995 (8th Cir. 2015) (quoting Engquist v. Or. Dep’t of Agric., 553 U.S. 591,
602-04 (2008)). Here, the evidence establishes that the defendants’ treatment and
classification decisions regarding Brown were discretionary, and therefore not
44

subject to a class-of-one equal protection claim. As previously stated, Brown was
placed at treatment Level One upon return to the NRC because it was the general
practice of the NRC and no consideration was given for changing this practice as a
result of Brown’s multiple sexual act outs, threats to staff, and self-reported
physical aggression toward a peer while a patient at the LRC. (Filing No. 45-8 at
CM/ECF p. 4, ¶ 18.) Furthermore, the defendants need not treat every patient in the
identical manner, so long as they would have made the same decision even if that
patient was not transgender or did not have gender dysphoria. The evidence
demonstrates that each patient has an individualized treatment plan and not every
patient progresses in treatment in the same fashion. (Filing No. 45-5 at CM/ECF p.
2, ¶ 9.) Brown fails to present any evidence that the reason for any disparate
treatment regarding treatment placement or progression was due to her gender nonconformity.
Brown also complains that her equal protection rights were violated when
she was denied a private bathroom. Brown has failed to set forth any meaningful
and competent facts to suggest that the denial of a private bathroom was in
discrimination of Brown’s gender non-conformity and was done to deprive Brown
of equal protection. Rather, the evidence establishes that the NRC approves a
patient for a private bathroom only when the patient has a physical need for a
private bathroom. (Filing No. 45-2 at CM/ECF p. 2, ¶ 10.) Brown was not able to
provide any reason why a private bathroom was required other than personal
preference; thus, her request for a private bathroom was denied. (Filing No. 45-2 at
CM/ECF p. 2, ¶ 10.) In addition, the NRC did not have enough room for Brown to
have a private bathroom. (Filing No. 45-2 at CM/ECF p. 2, ¶ 10.) Nonetheless, the
NRC endeavored to accommodate Brown’s bathroom concerns by ordering that
she be allowed to use the bathroom on the unit in private and by instructing other
patients on the unit not to use the bathroom when Brown was using it. (Filing No.
45-2 at CM/ECF p. 2, ¶¶ 11, 12.)
With respect to defendant Dawson, the DHHS Director of the Division of
Behavioral Health, there is no evidence that she had any personal involvement in
45

the decisions regarding Brown’s requests for female clothing and a private
bathroom. (Filing No. 45-1 at CM/ECF p. 2, ¶¶ 7-8.) Any decisions regarding these
requests were made by the NRC administration, not Dawson. (Filing No. 45-1 at
CM/ECF p. 2, ¶¶ 7-8.) Because there is no evidence that Dawson had any
connection with these decisions, and because she cannot be held personally liable
on a theory of respondeat superior, she is entitled to summary judgment on the
equal protection claim. See Brown v. Wallace, 957 F.2d 564, 566 (8th Cir. 1992)
(personal involvement of the named defendant is an essential element of any §
1983 claim because the doctrine of respondeat superior does not apply to actions
brought under § 1983).
Accordingly, all the defendants are entitled to summary judgment on
Brown’s equal protection claim.
F. Summary
The court finds that Brown’s claims against each defendant fail as a matter
of law. “If the court finds no constitutional violation occurred, the analysis ends
and the issue of qualified immunity is not addressed. . . . This is not to say,
however, the defendant official is entitled to qualified immunity. Rather, if no
constitutional violation occurred, plaintiff’s claim fails as a matter of law because
plaintiff did not prove an essential element of the § 1983 claim.” Ambrose v.
Young, 474 F.3d 1070, 1077 n.3 (8th Cir. 2007) (citations omitted). Alternatively,
because there was no constitutional violation, each defendant is entitled to
qualified immunity. See Payne v. Britten, 749 F.3d 697, 707 (8th Cir. 2014) (“For
example, a district court could begin and end with the first question, granting
qualified immunity because there was no constitutional violation.”).

46

IV. MOTION TO STRIKE
The defendants have also filed a Motion to Strike (Filing No. 54) various
parts of the inmates’ declarations in Brown’s Exhibits 13 and 14 (Filing No. 53 at
CM/ECF pp. 112-23). However, even with those parts of the declarations, Brown
does not bring enough evidence to defeat the defendants’ summary judgment
motion. The declarations largely contain inmates’ conclusory opinions about
Brown’s case or facts not relevant to Brown’s claims. Accordingly, the court
denies as moot the defendants’ Motion to Strike.
IT IS THEREFORE ORDERED that:
1.
granted.

Defendants’ Motion for Summary Judgment (Filing No. 43) is

2.

Defendants’ Motion to Strike (Filing No. 54) is denied.

3.

A separate judgment will be entered.
Dated this 8th day of May, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

47