Brown v. Kroll et al

Filing 35

MEMORANDUM AND ORDER - Defendants' Motion for Summary Judgment (Filing No. 11 ) is granted. Plaintiff's Motion for Summary Judgment (Filing No. 22 ) is denied. Defendants' Motion to Strike (Filing No. 26 ) 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,

8:17CV294

vs.
JOHN KROLL, Facility Operating
Officer at Norfolk Regional Center, In
Their Individual Capacities; BEVERLY
LEUSHEN, Licensed Administrative
Program Therapist, In Their Individual
Capacities; KATHY HERRON,
Licensed 3-East Unit Supervisor, In
Their Individual Capacities; TABITHA
WAGGONER, Provisionally Licensed
Group Facilitator and Social Worker, In
Their Individual Capacities; and
RHONDA WILSON, Registered Nurse,
In Their Individual Capacities;

MEMORANDUM
AND ORDER

Defendants.

This matter is before the court on the parties’ cross-motions for summary
judgment (Filing No. 11 & Filing No. 22).1 For the reasons that follow,
Defendants’ Motion for Summary Judgment is granted, and Plaintiff’s Motion for
Summary Judgment is denied.

1

Also pending is Defendants’ Motion to Strike (Filing No. 26) two
“affidavits” that Plaintiff submitted in support of her Motion for Summary
Judgment. However, even with these “affidavits,” Plaintiff does not bring enough
evidence to defeat Defendants’ summary judgment motion. Accordingly, the court
denies as moot Defendants’ Motion to Strike (Filing No. 26).

I. BACKGROUND
Plaintiff Mee Mee Brown (“Brown”) filed this action pursuant to 42 U.S.C.
§ 1983 against Defendants John Kroll (“Kroll”), Beverly Lueshen (“Lueshen”),2
Kathy Herian (“Herian”)3, Tabetha4 Waggoner (“Waggoner”), and Rhonda Wilson
(“Wilson”), who are employed at the Norfolk Regional Center (“NRC”) where
Brown was committed for inpatient sex offender treatment.5 After an initial review
of the Complaint (Filing No. 1) and Brown’s Motion to Amend Complaint (Filing
No. 6), the court allowed the following claims to proceed:
a.

An equal protection claim against Defendants Lueshen, Wilson,
Herian, and Waggoner for directing other NRC patients not to
associate with Brown because of her transgender identity.

b.

A First Amendment retaliation claim against Defendant Herian for
giving Brown negative treatment scores in response to Brown
changing her name and wearing a bra as expressions of her
transgender identity.

c.

A First Amendment retaliation claim against Defendant Herian for
giving Brown negative treatment scores in response to Brown’s filing
Case No. 8:16CV569.

2

Throughout this order, the court has corrected the spelling of “Leushen” to
“Lueshen.”
3

Throughout this order, the court has corrected the spelling of “Herron” to
“Herian.”
4

The correct spelling of Waggoner’s first name is “Tabetha.”

5

Brown was transferred to the Lincoln Regional Center (“LRC”) on
February 28, 2018. See docket entry dated March 16, 2018; Brown v. Dawson,
Filing No. 61, Case No. 8:16CV569 (D. Neb.).

2

d.

A First Amendment retaliation claim against Defendant Waggoner for
writing negative entries and low treatment scores in Brown’s
treatment plan and for forwarding negative untrue entries to the
mental health board in response to Brown’s filing Case No.
8:16CV569.6

e.

A First Amendment retaliation claim against Defendant Kroll for
directing staff to chart and monitor Brown’s activities and for denying
or ignoring purchase order requests in response to Brown’s filing Case
No. 8:16CV569.

(Filing No. 8 at CM/ECF pp. 15, 18.)7
Shortly after Defendants filed their Answer (Filing No. 10), Defendants filed
their Motion for Summary Judgment (Filing No. 11) on November 29, 2017. In
support of their Motion, Defendants filed a Brief and an Index of Evidence. (Filing
No. 12 & Filing No. 13.) On January 22, 2018, Brown filed her own Motion for
Summary Judgment (Filing No. 22) and an Index of Evidence (Filing No. 23),
which included as an exhibit her “Objection to Defendants’ Motion for Summary
Judgment” (Filing No. 23 at CM/ECF pp. 29-32).8 Defendants filed a Brief in
Opposition (Filing No. 25) to Brown’s Motion for Summary Judgment.
6

This claim was inadvertently omitted from the order portion of the October
10, 2017 initial review order. (Compare Filing No. 8 at CM/ECF p. 15 with Filing
No. 8 at CM/ECF p. 18.)
7

The court denied Brown’s Motion to Amend Complaint (Filing No. 6).
(Filing No. 8 at CM/ECF p. 18.)
8

Brown’s “Objection to Defendants’ Motion for Summary Judgment” was
not filed properly. See NECivR 7.1(b)(1)(A) (“The party opposing a motion must
not file an “answer,” “opposition,” “objection,” or “response,” or any similarly
(continued on next page)
3

The party seeking the entry of summary judgment in its favor must set forth
“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)(1). This statement of facts “should consist of
short numbered paragraphs, each containing pinpoint references to affidavits,
pleadings, discovery responses, . . . or other materials that support the material
facts stated in the paragraph.” NECivR 56.1(a)(2). If the non-moving party
opposes the motion, that party must “include in its [opposing] brief a concise
response to the moving party’s statement of material facts.” NECivR 56.1(b)(1).
Such response must “address each numbered paragraph in the movant’s statement”
of facts and must contain pinpoint citations to evidence supporting the opposition.
Id. “Properly referenced material facts in the movant’s statement are considered
admitted unless controverted in the opposing party’s response.” Id.; see also Fed.
R. Civ. P. 56(e) (“A supporting or opposing affidavit must be made on personal

titled responsive filing. Rather, the party must file a brief that concisely states the
reasons for opposing the motion and cites to supporting authority.”) Furthermore, it
was untimely. Brown’s “Objection to Defendants’ Motion for Summary
Judgment” is dated January 16, 2018 (Filing No. 23 at CM/ECF p. 32), and was
filed on January 22, 2018, which is four days after the January 18, 2018 deadline
by which Brown was required to respond. (See Filing No. 15.) In addition,
although Brown did file her own Motion for Summary Judgment, she did not
submit a separate, supporting brief in compliance with the court’s Local Rules. See
NECivR 7.1(a)(1)(A) (“A motion raising a substantial issue of law must be
supported by a brief filed and served together with the motion. The brief must be
separate from, and not attached to or incorporated in, the motion or index of
evidence.”). Brown is cautioned that, in the future, she must comply with the
Federal Rules of Civil Procedure and the court’s Local Rules. See NEGenR 1.3(g)
(pro se litigants are “bound by and must comply with all local and federal
procedural rules”); 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).

4

knowledge, set out facts that would be admissible in evidence, and show that the
affiant is competent to testify on the matters stated.”).
Defendants have submitted a statement of material facts in accordance with
the court’s Local Rules and properly authenticated evidence. Brown’s “Objection
to Defendants’ Motion for Summary Judgment”—in addition to not being filed
properly in accordance with the Local Rules—does not contain a concise response
to each of Defendants’ statements of material fact. See NECivR 56.1(b)(1).
Furthermore, Brown’s own Motion for Summary Judgment includes a statement of
material facts, but does not contain “pinpoint references” to “materials that support
the material facts stated in the paragraph[s].” See NECivR 56.1(a)(2). Nonetheless,
Defendants have responded to each of Brown’s statements of material fact in
accordance with the court’s Local Rule.
Thus, while Defendants submitted a statement of material facts in
accordance with the court’s Local Rules, Brown has not. In light of this, the court
adopts the following undisputed material facts, which are largely taken from
Defendants’ submission and have not been properly disputed pursuant to the
Federal and Local Rules.
II. RELEVANT UNDISPUTED MATERIAL FACTS
1.
The Nebraska Department of Health and Human Services (“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.

5

4.
The state hospital for the mentally ill established in Lancaster County,
Nebraska is known as the LRC. Neb. Rev. Stat. § 83-305.
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. 13-1 at
CM/ECF p. 1, ¶ 5.)
6.
Brown was a patient at the NRC from December 2013 through
September 2015. (Filing No. 13-1 at CM/ECF p. 2, ¶ 6.)
7.
Brown was a patient at the LRC from September 2015 until Brown’s
readmission to the NRC in October 2016. (Filing No. 13-1 at CM/ECF p. 2, ¶ 7.)
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. 13-1 at
CM/ECF p. 2, ¶ 8.)
John Kroll
9.
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. 13-1 at CM/ECF p. 1, ¶ 3.)
10. Kroll has been employed by the NRC for approximately 41 years.
(Filing No. 13-1 at CM/ECF p. 1, ¶ 4.)
11. Kroll is not involved in any decisions regarding Brown’s treatment
level, treatment progression, or entries on Brown’s treatment chart. (Filing No. 131 at CM/ECF p. 2, ¶ 9.)
6

12. Kroll never directed NRC staff members to chart or monitor Brown’s
conversations or calls to outside media or family into Brown’s treatment chart.
(Filing No. 13-1 at CM/ECF p. 2, ¶ 10.)
13. As a member of the NRC administration, Kroll denied one purchase
order request submitted by Brown. Brown requested to purchase a silicone bra.
The request was initially approved by the treatment team, but was denied by the
NRC administration due to safety and security concerns. Since being readmitted to
the NRC, Brown has been approved to wear female undergarments. The NRC
administration determined the silicone bra request went beyond the approved
undergarments. The NRC is a mental hospital which treats patients with histories
of deviant sexual behaviors, who may also be criminal offenders. The NRC
administration was concerned a silicone bra would draw more attention to Brown,
and would place Brown’s safety and security at risk from other patients. The NRC
administration was also concerned the request would interfere with the treatment of
other patients. (Filing No. 13-1 at CM/ECF pp. 2-3, ¶ 11.)
14. Kroll did not deny any other purchase order requests made by Brown.
To Kroll’s knowledge, this was the only purchase order request made by Brown
that was denied after readmission to the NRC. (Filing No. 13-1 at CM/ECF pp. 23, ¶ 11.)
15. The NRC is required to account for the whereabouts and provide
security for its patients. It is the policy of the NRC that all patients must be
accounted for at all times. Patient counts are performed throughout the day. The
nursing service staff conduct a check of each patient’s whereabouts a minimum of
once every 30 minutes and record this information. If patients are in their room
during a check, they must be observed for life signs, such as breathing or body
movement. If staff are unable to see life signs, they will knock on the patient’s
door and open it for further assessment. (Filing No. 13-1 at CM/ECF p. 3, ¶ 12.)

7

16. Patients during the day are required to have their white room curtains
open 2/3 of the way in their window unless they are engaging in privacy activities.
If staff are conducting the roll call of patients and patients have their white curtain
up on their room, staff will knock on the patient’s door. If the patients say they are
busy, staff give them five minutes. After the five minutes, staff knock on the door,
and if the patients refuse to come to the door or take the white curtain down, staff
advise the patients they must open the door in one minute. It is essential that staff
be able to verify patients are in their room and what they are doing. (Filing No. 131 at CM/ECF p. 3, ¶ 13.)
17. Patients are required to remove their white room curtains every night
by 23:00 hours and place the curtains on their dresser, or the curtains will be
removed by staff and placed on the patient’s dresser. (Filing No. 13-1 at CM/ECF
p. 3, ¶ 14.)
18. Brown is not treated any differently regarding patient supervision and
staff checks than any other patient. (Filing No. 13-1 at CM/ECF p. 3, ¶ 15.)
19. Kroll does not remember the date in which he was served with the
lawsuit in Case No. 8:16CV569. (Filing No. 13-1 at CM/ECF p. 4, ¶ 17.)
20. Brown is not the first patient to sue Kroll. (Filing No. 13-1 at
CM/ECF p. 4, ¶ 18.)
21. Kroll is not offended when a patient files a lawsuit against him.
(Filing No. 13-1 at CM/ECF p. 4, ¶ 19.)
22. Kroll believes Brown has the right to file a lawsuit. (Filing No. 13-1 at
CM/ECF p. 4, ¶ 20.)
23. It is the policy of the NRC to investigate each written grievance
submitted by a patient and meet with and/or respond to the patient within 12
8

calendar days from the date the grievance was received, unless additional time is
necessary for adequate investigation. If more time is needed, the patient is notified
in writing. Kroll reviewed the records of grievances submitted by Brown, and
determined all grievances were responded to within 12 days. (Filing No. 13-1 at
CM/ECF p. 4, ¶ 21.)
Beverley Lueshen
24. Lueshen has been employed at the NRC since September 1986.
(Filing No. 13-2 at CM/ECF p. 1, ¶ 3.)
25. 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. 13-2 at CM/ECF p. 1, ¶ 4.)
26. Lueshen never threatened other patients with “no contact” orders or
“negative treatment scores” if they interacted with Brown. (Filing No. 13-2 at
CM/ECF p. 1, ¶ 5.)
27. Lueshen never issued a “no contact” order regarding Brown. (Filing
No. 13-2 at CM/ECF p. 1, ¶ 6.)
28. Lueshen would not have the authority to issue any such “no contact”
order by herself. A “no contact” order involving an NRC patient would have to be
made by the entire treatment team. (Filing No. 13-2 at CM/ECF p. 2, ¶ 7.)
29. Lueshen is involved in the scoring of treatment plans for other
patients. Her scoring is based upon that patient’s behaviors. The purpose of
treatment plan scoring is to address treatment issues with the patient being scored.
Treatment plan scoring is not intended to prevent Brown from interacting with
other patients, or to punish Brown. (Filing No. 13-2 at CM/ECF p. 2, ¶ 8.)

9

30. Treatment plan scores are not intended to be “negative” toward the
patient. Treatment plan scoring is a tool to determine a patient’s treatment
progress. Treatment plan scores are intended to assist the patient in determining
what areas of treatment require more effort or work. (Filing No. 13-2 at CM/ECF
p. 2, ¶ 9.)
31. Lueshen never said, “Mee Mee thinks he’s a girl and that’s a
distortion that will keep him here in treatment longer because he’s capable of reoffending.” Lueshen would never say anything like that. (Filing No. 13-2 at
CM/ECF p. 2, ¶ 10.)
32. Lueshen never said to other patients, “I can see Mee Mee being in
treatment for awhile [sic] because he likes to file lawsuits against staff, and his
lawsuits are going nowhere, this ain’t [sic] good for his treatment. . . . You should
not be sitting next to or eating with Mee Mee. You both will be charted on, and this
will reflect [sic] your treatment plan review.” Lueshen would never say anything
like that. (Filing No. 13-2 at CM/ECF p. 2, ¶ 11.)
33. Lueshen never discussed Brown’s lawsuits or treatment with other
patients. (Filing No. 13-2 at CM/ECF p. 2, ¶ 12.)
34. Lueshen never warned other patients they should not be sitting with or
eating with Brown. (Filing No. 13-2 at CM/ECF p. 2, ¶ 13.)
35. Patients are allowed to sit or eat with whomever they want unless
there is an order preventing such activity issued by the entire treatment team.
Lueshen is not aware of any such order involving Brown. To the best of Lueshen’s
knowledge, Brown was allowed to sit and eat with any other patient at the NRC.
(Filing No. 13-2 at CM/ECF p. 3, ¶ 14.)
36. Lueshen never told other patients they would be “charted on” if they
sat with or ate with Brown. (Filing No. 13-2 at CM/ECF p. 3, ¶ 15.)
10

37. Lueshen does not care whether Brown sits or eats with other patients,
and she does not care which patients Brown sits or eats with. (Filing No. 13-2 at
CM/ECF p. 3, ¶ 16.)
38. Lueshen never prevented another patient from advancing in treatment
because they interacted with Brown. (Filing No. 13-2 at CM/ECF p. 3, ¶ 17.)
39. Lueshen never told another patient not to associate with Brown
because Brown identifies as transgendered. (Filing No. 13-2 at CM/ECF p. 3, ¶
18.)
40. Lueshen never discussed Brown’s transgender identity with another
patient. (Filing No. 13-2 at CM/ECF p. 3, ¶ 19.)
41. Lueshen does not care if Brown identifies as transgendered. (Filing
No. 13-2 at CM/ECF p. 3, ¶ 20.)
42. Lueshen believes Brown has the right to file a lawsuit. (Filing No. 132 at CM/ECF p. 3, ¶ 21.)
43. Lueshen does not care if Brown files a lawsuit. (Filing No. 13-2 at
CM/ECF p. 3, ¶ 22.)
Kathy Herian
44. Herian has been a Licensed Nurse in the State of Nebraska since
1970. Herian has been a Certified Mental Health Nurse by the American Nurses
Association since 1990. (Filing No. 13-3 at CM/ECF p. 1, ¶ 3.)
45. Herian has been employed at the NRC since 1979. (Filing No. 13-3 at
CM/ECF p. 1, ¶ 4.)
11

46. Herian has been a Registered Nurse Supervisor at the NRC since
1990. (Filing No. 13-3 at CM/ECF p. 1, ¶ 5.)
47. Herian has been the Unit 3 East Supervisor of the NRC since January
2017. (Filing No. 13-3 at CM/ECF p. 1, ¶ 6.)
48. Herian rarely interacted with Brown. Brown was not a ward on a unit
that Herian supervised at the NRC. Brown was a ward on Unit 3 West, while
Herian was the supervisor of Unit 3 East. (Filing No. 13-3 at CM/ECF p. 1, ¶ 7.)
49. Herian was not a member of Brown’s treatment team. Herian did not
participate in the scoring of Brown’s treatment plans. Herian never “negatively”
scored Brown’s treatment plans. Treatment plan scores are not intended to be
negative. Treatment plan scores are intended to reflect a patient’s treatment
progress. (Filing No. 13-3 at CM/ECF p. 2, ¶ 8.)
50. Herian was not involved in the determination of Brown’s treatment
level. Herian was not aware of Brown’s treatment level until she read the
allegations in this lawsuit. Herian had no reason to know Brown’s treatment level
because Brown did not reside on Herian’s unit. Herian would have no reason to
know whether Brown progressed in treatment level for that reason. (Filing No. 133 at CM/ECF p. 2, ¶ 9.)
51. Herian checked the facility records and could not locate any
documentation to establish she interacted with Brown on June 13, 2017, which is
the date Brown alleges Herian said, “Do not be using my unit staff to do anything
involving this lawsuit that you got going on. You need to be sending that stuff to
the treatment team. This lawsuit crap is not gonna [sic] move you forward here, it’s
only gonna [sic] set you back longer. So if you wanna [sic] be here longer, then
keep this up. And you and the patients helping you will all have 10 ft. no contact
orders placed on both of you.” (Filing No. 13-3 at CM/ECF p. 2, ¶ 10.)
12

52. Herian does not have the authority to issue a “10 ft. no contact order.”
Only the treatment team would have the authority to issue that kind of an order.
(Filing No. 13-3 at CM/ECF p. 2, ¶ 11.)
53. Herian never discussed Brown’s treatment or lawsuits with other
patients. (Filing No. 13-3 at CM/ECF p. 2, ¶ 12.)
54. Herian was not at work at the NRC on June 19, 2017, the date Brown
alleges that Herian said, “You were Cornelius when you came here, now you want
us to call you Mee Mee? I may just keep calling you Cornelius.” (Filing No. 13-3
at CM/ECF p. 2, ¶ 13.)
55. Herian is aware Brown’s first name was legally changed from
Cornelius to Mee Mee; Herian uses Brown’s legal name. (Filing No. 13-3 at
CM/ECF p. 3, ¶ 14.)
56. Herian never threaten or warned other patients not to associate with
Brown. (Filing No. 13-3 at CM/ECF p. 3, ¶ 15.)
57. Herian believes Brown has the right to file a lawsuit. (Filing No. 13-3
at CM/ECF p. 3, ¶ 17.)
58. Herian does not care if Brown files a lawsuit. (Filing No. 13-3 at
CM/ECF p. 3, ¶ 18.)
59. Herian never prevented a patient from advancing in treatment because
they associated with Brown. (Filing No. 13-3 at CM/ECF p. 3, ¶ 19.)
60. Herian never told a patient not to associate with Brown because
Brown identifies as transgendered. (Filing No. 13-3 at CM/ECF p. 3, ¶ 20.)

13

61. Herian never discussed Brown’s transgender identity with another
patient. (Filing No. 13-3 at CM/ECF p. 3, ¶ 21.)
62. Herian does not care if Brown identifies as transgendered or wears
female undergarments. (Filing No. 13-3 at CM/ECF p. 3, ¶ 22.)
Tabetha Waggoner
63. Waggoner has been employed at the NRC since December 2015.
(Filing No. 13-4 at CM/ECF p. 1, ¶ 3.)
64. At all times relevant, Waggoner was a provisionally licensed Master
Social Worker at the NRC. (Filing No. 13-4 at CM/ECF p. 1, ¶ 4.)
65. From approximately October 2016 through July 2017, Waggoner was
one of the group facilitators for the sex offender treatment group therapy attended
by Brown at the NRC. Waggoner rarely interacted with Brown after July 2017.
(Filing No. 13-4 at CM/ECF p. 1, ¶ 5.)
66. During her time as a group facilitator, Waggoner participated in the
scoring of Brown’s treatment plan. Her treatment plan scoring was not intended to
be “low” or “negative” toward Brown. The purpose of the scoring was to review
Brown’s treatment plan and report the group therapy treatment progress Brown
made during the reporting period. The scoring was unrelated to Brown’s gender
identity. Approximately every two months, Waggoner and the other group
facilitator would submit a synopsis of Brown’s group therapy treatment progress to
the treatment team. The entire treatment team would then work on treatment plan
scoring together before submitting it to the mental health board. (Filing No. 13-4 at
CM/ECF pp. 1-2, ¶ 6.)
67. Waggoner never submitted any scoring to the mental health board
herself. Waggoner recalls reporting that Brown’s progress in group therapy
14

treatment had improved during her involvement. (Filing No. 13-4 at CM/ECF p. 2,
¶ 6.)
68. During her time as a group facilitator, Waggoner sometimes made
entries on Brown’s chart regarding treatment progress. The entries were not
intended to be “negative,” but were factual information intended to track Brown’s
treatment progress. Waggoner never forwarded any entries to the mental health
board herself. (Filing No. 13-4 at CM/ECF p. 2, ¶ 7.)
69. Waggoner never told other patients that Brown “thinks he is a female
and you guys should be careful hanging out with him so much that will keep you
here longer.” Waggoner would never say anything like that to another patient.
(Filing No. 13-4 at CM/ECF p. 2, ¶ 8.)
70. Waggoner never discussed Brown’s treatment or gender identity with
another patient. (Filing No. 13-4 at CM/ECF p. 2, ¶ 9.)
71. Waggoner recalls that Brown approached her on one occasion and
asked if she knew the status of a request Brown had made to order a bra. Waggoner
advised Brown she was unsure of the status, but knew it was being discussed.
Waggoner advised Brown that she supported the request to purchase a bra.
Waggoner did not have the authority to approve or deny this request herself.
(Filing No. 13-4 at CM/ECF p. 2, ¶ 11.)
72. Waggoner does not care if Brown interacts with other patients as long
as the interactions are appropriate and show healthy boundaries. It is part of her job
duties to point out if patient interaction is inappropriate or lacks healthy
boundaries. (Filing No. 13-4 at CM/ECF p. 3, ¶ 12.)
73. Waggoner never threatened or warned other patients not to associate
with Brown. Waggoner encouraged one patient on her case load to maintain
healthy boundaries with Brown, but this encouragement was related to that
15

patient’s treatment and was unrelated to Brown’s gender identity or lawsuits.
(Filing No. 13-4 at CM/ECF p. 3, ¶ 13.)
74. Waggoner believes Brown has the right to file a lawsuit. (Filing No.
13-4 at CM/ECF p. 3, ¶ 15.)
75. Waggoner does not care if Brown files a lawsuit. (Filing No. 13-4 at
CM/ECF p. 3, ¶ 16.)
76. Waggoner never prevented a patient from advancing in treatment
because the patient associated with Brown. (Filing No. 13-4 at CM/ECF p. 3, ¶ 17.)
77. Waggoner never told a patient not to associate with Brown because
Brown identifies as transgendered or filed a lawsuit. (Filing No. 13-4 at CM/ECF
p. 3, ¶ 18.)
78. Waggoner does not care if Brown identifies as transgendered. (Filing
No. 13-4 at CM/ECF p. 3, ¶ 19.)
Rhonda Wilson
79. Wilson has been a Licensed Registered Nurse for approximately ten
years. (Filing No. 13-5 at CM/ECF p. 1, ¶ 3.)
80. Wilson has been employed by the State of Nebraska for
approximately ten years. (Filing No. 13-5 at CM/ECF p. 1, ¶ 4.)
81. Wilson has been employed at the NRC as a Registered Nurse (RN)
since July 2016. (Filing No. 13-5 at CM/ECF p. 1, ¶ 5.)

16

82. Wilson rarely interacted with Brown. Wilson only made one entry on
Brown’s chart during her NRC employment, and that entry was made in May 2017
regarding an unrelated health issue. (Filing No. 13-5 at CM/ECF p. 1, ¶ 6.)
83. Wilson never made an untruthful entry on any patient’s chart. (Filing
No. 13-5 at CM/ECF p. 1, ¶ 7.)
84. Brown alleges Wilson made an entry on Brown’s chart on July 27,
2017. Wilson would not have made any such entry because she was not working
on Brown’s unit that day. Brown was a ward on Unit 3 East that day. Wilson was
working on Unit 2 East that day. (Filing No. 13-5 at CM/ECF p. 2, ¶ 8.)
85. Wilson was on vacation with her family in Niobrara, Nebraska on July
28, 2017, which is when Brown alleges that Wilson said, “Ain’t [sic] you suing the
staff here at NRC? What are you trying to get? If you think filing lawsuits is gonna
[sic] get you out, or help you wear women’s clothes, that ain’t [sic] happening. So
file all the lawsuits you want to, ain’t [sic] no one gonna [sic] help you.” (Filing
No. 13-5 at CM/ECF p. 2, ¶ 9.)
86. Wilson never discussed Brown’s lawsuits or requests to wear female
clothing with Brown. (Filing No. 13-5 at CM/ECF p. 2, ¶ 10.)
87. Wilson never threatened or warned other patients not to associate with
Brown. Wilson once had a discussion with a patient regarding boundary issues
with Brown. Wilson was not the patient’s assigned RN. Wilson referred the patient
to his assigned RN. (Filing No. 13-5 at CM/ECF p. 2, ¶ 12.)
88. Wilson believes Brown has the right to file a lawsuit. (Filing No. 13-5
at CM/ECF p. 2, ¶ 13.)
89. Wilson does not care if Brown files a lawsuit. (Filing No. 13-5 at
CM/ECF p. 2, ¶ 14.)
17

90. Wilson never prevented a patient from advancing in treatment because
the patient associated with Brown. (Filing No. 13-5 at CM/ECF p. 2, ¶ 15.)
91. Wilson never told a patient not to associate with Brown because
Brown identifies as transgendered. (Filing No. 13-5 at CM/ECF p. 2, ¶ 16.)
92. Wilson never discussed Brown’s transgender identity with another
patient. (Filing No. 13-5 at CM/ECF p. 3, ¶ 17.)
93. Wilson does not care if Brown identifies as transgendered or wants to
wear female clothes. (Filing No. 13-5 at CM/ECF p. 3, ¶ 18.)
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
18

“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).
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
19

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).
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. Equal Protection Claims
Brown claims that Defendants Lueshen, Wilson, Herian, and Waggoner
violated the Equal Protection Clause’s prohibition against sex-based discrimination
by warning and threatening other NRC patients not to associate with Plaintiff
because of her transgender identity.
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
(2008) (quoting Vill. 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).
A plaintiff can establish an equal protection “class of one” claim by alleging
that he or 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
20

from others similarly situated; and (3) there is no rational basis for the difference in
treatment. Olech, 528 U.S. at 564. A defendant’s treatment of the plaintiff 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”).
Brown claims disparate treatment based on her inability to associate with
other patients at the NRC due to warnings and threats that allegedly were issued by
Defendants Lueshen, Wilson, Herian, and Waggoner. Brown presents no evidence
supporting her assertions. Defendants Lueshen, Wilson, Herian, and Waggoner
have presented evidence, through affidavits, that they did not threaten or warn
other patients not to associate with Brown because of her transgender identity.
Defendants have also submitted evidence that they did not issue a “no contact”
order between Brown and another patient because of Brown’s transgender
identity.9 Brown has presented no evidence that contradicts this evidence. Instead,
Brown simply reiterates her allegations in the Complaint and argues that
Defendants’ statements in their affidavits are “misleading” and “untrue.” (See
generally Filing No. 22 & Filing No. 23.) But that is not how summary judgment
works: a party opposing summary judgment “may not rest upon the mere
allegation or denials of h[er] pleading, but must set forth specific facts showing
that there is a genuine issue for trial, and must present affirmative evidence in
9

The evidence establishes that only the treatment team has the authority to
issue “no contact” orders; the individual Defendants do not have the authority to
issue “no contact” orders on their own.

21

order to defeat a properly supported motion for summary judgment.” Ingrassia,
825 F.3d at 896 (quoting Anderson, 477 U.S. at 256-57).
Taking the evidence in the light most favorable to Brown, at best she could
establish that she was prevented from associating with another patient during
“patient hour” and/or was prevented from living on the same unit as another patient
because Brown and that patient had “bad boundaries” and/or there was a concern
about patient safety. There is no evidence, however, that the “bad boundaries”
determination was related to Brown’s transgender identity. Rather, the evidence
establishes that contact between patients is limited if their interactions are
inappropriate or their boundaries are unhealthy. Thus, to the extent Brown’s
contact with another patient was restricted, the evidence indicates it was because
their interaction was inappropriate or lacked healthy boundaries. It is undisputed
that Brown has a history of inappropriate contact with other patients. Indeed,
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. There is simply no evidence, beyond
Brown’s own allegations, that Defendants Lueshen, Wilson, Herian, and Waggoner
prevented Brown from associating with other patients because of Brown’s
transgender identity.
More importantly, however, Brown has not shown that she was treated
differently from other NRC patients. She has not shown that she is the only patient
who has been given “boundaries.” Furthermore, even if Brown was treated
differently from other “similarly situated” patients, Defendants have shown a
rational basis for any such dissimilar treatment: to maintain appropriate
interactions and healthy boundaries between patients in order to ensure the safety
and security and the treatment progression of all patients. The NRC is a mental
hospital which treats patients with histories of deviant sexual behaviors, who may
also be criminal offenders. Defendants have offered evidence that Brown and
another NRC patient had “bad boundaries.” Brown has presented no evidence to
the contrary. Thus, to the extent Defendants limited or prevented Brown from
22

associating with certain patients, they have shown legitimate reasons for doing so.
When restrictions imposed on patients are “reasonable,” their “right to equal
protection has not been violated.” See Hosna v. Groose, 80 F.3d 298, 305 (8th Cir.
1996).
D. First Amendment Retaliation Claims
Next, Brown claims that Defendants Herian, Kroll, and Waggoner retaliated
against her for filing Case No. 8:16CV569. In addition, Brown asserts that
Defendant Herian retaliated against her for changing her name and wearing a bra
as expressions of her transgender identity. Brown alleges the following retaliatory
conduct: Herian gave Brown negative treatment scores; Waggoner wrote negative
entries and low treatment scores in Brown’s treatment plan and forwarded negative
untrue entries to the mental health board; and Kroll directed staff to chart and
monitor Brown’s activities and denied or ignored Brown’s purchase order requests.
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 v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004);
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)).

23

Defendants Herian, Kroll, and Waggoner do not dispute that filing a lawsuit
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. In
addition, Defendant Herian does not dispute that Brown changing her name and
wearing a bra as expressions of her transgender identity constitute protected speech
under the First Amendment. Defendants do dispute, however, that Brown can
prove the other two essential elements of her retaliation claims.
With respect to the second prong, the ordinary-firmness test is well
established in the case law and is designed to weed out trivial matters from those
deserving the time of the courts as real and substantial violations of the First
Amendment. Garcia v. City of Trenton, 348 F.3d 726, 728 (8th Cir. 2003). The test
is an objective one, not subjective. Id. at 729. The question is not whether the
plaintiff was deterred, though how the plaintiff acted might be evidence of what a
reasonable person would have done. Id. The question is what a person of ordinary
firmness would have done. 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 “butfor cause” of the adverse action. Peterson, 754 F.3d at 602. In other words, a
plaintiff must show he or she was singled out because of exercise of constitutional
rights. Id. The causal connection between the adverse action and the protected
activity is generally a jury question, but it can provide a basis for summary
judgment when the question is so free from doubt as to justify taking it from the
jury. Revels, 382 F.3d at 876.
Herian
There is no evidence that Herian gave Brown “negative” treatment scores in
24

retaliation for Brown’s filing Case No. 8:16CV569 or for changing her name and
wearing a bra as expressions of her transgender identity. As an initial matter,
treatment plan scores are not intended to be “negative”; rather, they are intended to
reflect a patient’s treatment progress. In addition, Defendant Herian has submitted
evidence, through an affidavit, that she was not a member of Brown’s treatment
team and did not participate in the scoring of Brown’s treatment plans. The
evidence further shows that Herian was not involved in the determination of
Brown’s treatment level or even aware of Brown’s treatment level until she read
the allegations in this lawsuit. Herian had no reason to know Brown’s treatment
level because Brown did not reside on Herian’s unit. Brown has presented no
evidence, beyond her own allegations, that contradicts this evidence.10
Furthermore, Brown has not presented evidence that she suffered negative
consequences as a result of any scoring by Herian. There is no evidence that
Brown was prevented from using the name Mee Mee, wearing a bra, or filing this
lawsuit. Finally, there is no evidence that Herian was motivated to take adverse
action based on Brown’s exercise of her First Amendment rights. Indeed, Herian
knew Brown had a right to file lawsuits and did not care whether Brown exercised
that right.11 Herian also did not care if Brown identified as transgendered and wore
female undergarments. Herian did not object to Brown being called Mee Mee.12
10

Brown has included in her Index of Exhibits a November 7, 2016, Suicide
Assessment Scale, which is signed by Herian and others. (Filing No. 23 at
CM/ECF pp. 4-5.) There is no evidence that suicide risk assessments are
“treatment plans” or that they constitute treatment plan “scoring.” As such, this
evidence fails to dispute that Herian did not participate in the scoring of Brown’s
treatment plans.
11

Brown alleges that, on June 13, 2017, Herian told Brown that filing
lawsuits would hinder her treatment progression, but the evidence indicates that
Herian did not interact with Brown on that date.
12

Although Brown alleges that, on June 19, 2017, Herian said, “You were
Cornelius when you came here, now you want us to call you Mee Mee? I may just
(continued on next page)
25

Herian knew Brown’s first name was legally changed from Cornelius to Mee Mee,
and Herian used Brown’s legal name. There is simply no evidence that the alleged
“negative” scores were related to Brown’s filing Case No. 8:16CV569 or for
changing her name and wearing a bra.
Kroll
Brown has also provided no competent evidence that, in retaliation for her
filing Case No. 8:16CV569, Kroll directed staff to chart and monitor Brown’s
activities and denied or ignored Brown’s purchase order requests.
Defendant Kroll has submitted evidence, through an affidavit, that he never
directed NRC staff members to chart or monitor Brown’s conversations or calls to
outside media or family into Brown’s treatment chart. Indeed, Kroll avers that he
was not involved in any decisions regarding Brown’s treatment level, treatment
progression, or entries on Brown’s treatment chart. Brown has not submitted
evidence that contradicts this evidence. The evidence further demonstrates that the
NRC has certain safety protocols in order to monitor the whereabouts and safety of
its patients. It is NRC policy that all patients must be accounted for at all times,
and patient counts are performed throughout the day. The nursing service staff
conduct a check of each patient’s whereabouts a minimum of once every 30
minutes and record this information. Although Brown may not have welcomed
such supervision and monitoring, there is no evidence that Brown was treated
differently than other patients regarding supervision and monitoring because she
filed Case No. 8:16CV569. Furthermore, Brown has provided no evidence that she
suffered negative consequences as a result of any charting or monitoring of her
activities. Clearly, any charting or monitoring did not deter Brown from filing this
lawsuit.

keep calling you Cornelius,” the evidence shows that Herian was not at work at the
NRC on that date.

26

The evidence also establishes that, as a member of the NRC administration,
Kroll denied one purchase order request for silicone bra inserts submitted by
Brown due to safety and security concerns, not due to Brown’s filing Case No.
8:16CV569. The NRC administration was concerned a silicone bra would draw
more attention to Brown and would place Brown’s safety and security at risk from
other patients. The NRC administration was also concerned the request would
interfere with the treatment of other patients. Brown has not presented evidence
that Kroll denied or ignored any other purchase order requests. While the court
notes Brown’s disappointment and frustration of being denied silicone bra inserts,
Brown fails to present evidence that the denial is sufficiently intimidating to chill
the speech of a person of ordinary firmness. Indeed, Brown has filed this lawsuit.
Finally, the evidence establishes that Kroll had no motivation to prevent
Brown from engaging in a constitutionally protected activity. Kroll knew Brown
had a right to file lawsuits and did not care whether Brown exercised that right.
Waggoner
There is no evidence that Waggoner wrote negative entries and low
treatment scores in Brown’s treatment plan or forwarded negative untrue entries to
the mental health board in retaliation for Brown’s filing Case No. 8:16CV569. The
evidence demonstrates that, during her time as a group facilitator, Waggoner did
participate in the scoring of Brown’s treatment plan and sometimes made entries
on Brown’s chart regarding treatment progress. Waggoner’s treatment plan scoring
and entries, however, were not intended to be “low” or “negative.” The purpose of
the scoring and entries was to review Brown’s treatment plan and report the
progress Brown had made in group therapy treatment. Waggoner reported that
Brown’s progress in group therapy treatment had improved during her
involvement. There is no evidence that Waggoner forwarded any entries or scoring
to the mental health board on her own. The evidence shows that, approximately
every two months, Waggoner and the other group facilitator would submit a
27

synopsis of Brown’s group therapy treatment progress to the treatment team. The
entire treatment team would then work together on treatment plan scoring before
submitting it to the mental health board. Brown has submitted no evidence that any
entries forwarded to the mental health were untrue.
Brown has not presented any evidence that Waggoner’s treatment scoring
and entries were related to Brown’s filing Case No. 8:16CV569. Brown’s
disagreement with any treatment scoring or entries does not establish that those
scoring and entries were untrue or were made in retaliation of Brown exercising
her First Amendment rights. There is no evidence Brown suffered negative
consequences as a result of Waggoner’s entries or scores in her treatment plan or
that any action of Waggoner prevented Brown from filing this lawsuit. Finally,
there is no evidence that Waggoner was motivated to take adverse action based on
Brown’s filing Case No. 8:16CV569. Indeed, Waggoner knew Brown had a right
to file lawsuits and did not care whether Brown exercised that right.
Summary
To survive summary judgment on her retaliation claims, Brown must present
evidence of a causal connection between constitutionally protected activity and an
adverse action. There is nothing to show any action of Defendants Herian, Kroll,
and Waggoner 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 these
Defendants treated Brown any differently than any other NRC patient due to
Brown’s exercise of constitutional rights.
E. Conclusion
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,
28

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.”).
IT IS THEREFORE ORDERED that:
1.
granted.

Defendants’ Motion for Summary Judgment (Filing No. 11) is

2.

Plaintiff’s Motion for Summary Judgment (Filing No. 22) is denied.

3.

Defendants’ Motion to Strike (Filing No. 26) is denied.

4.

A separate judgment will be entered.

Dated this 24th day of May, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

29