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Brown v. Dept. of Health & Human Svs.

United States District Court, D. Nebraska

December 9, 2014

CORNELIUS BROWN, Plaintiff,
v.
DEPT. OF HEALTH & HUMAN SVS., et al., Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, Senior District Judge.

Plaintiff Cornelius Brown ("Brown") filed his Complaint (Filing No. 1) in this matter on September 30, 2014. This court has given Brown leave to proceed in forma pauperis. The court now conducts an initial review of Brown's Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

I. SUMMARY OF COMPLAINT

Brown, a black male, is confined to inpatient treatment at the Norfolk Regional Center ("NRC") in Norfolk, Nebraska. He named as Defendants five individuals employed at the NRC including TiLinn Bouer, Chris Simmons, John Kroll, Lori Strong, and Dianna Mastny. (Filing No. 1 at CM/ECF pp. 3-4.) He also named the Nebraska Department of Health and Human Services ("NDHHS") and a fellow inpatient (hereinafter referred to as "M.P.") as Defendants. ( Id. )

On June 28, 2014, another patient at the NRC used racially derogatory language in Brown's presence and Strong failed to "offer any redirection to the patient." ( Id. at CM/ECF p. 2.) On June 30, 2014, two patients used racially derogatory language in Brown's presence and Mastny failed to redirect the patients. In addition, Mastny advised Brown that he needed "to learn to get over it." ( Id. ) On July 21, 2014, M.P. used racially derogatory language toward Brown, and Brown responded by saying "f___k you motherf___er." ( Id. ) Following the incident on July 21, Brown was immediately disciplined. Brown did not specify how he was disciplined or whether any of the named Defendants were involved in disciplining him.

Brown generally alleged in the Complaint that Kroll and Simmons were responsible for failing to address patients' racially derogatory language. However, Brown did not offer any specific allegations with respect to his claims against Kroll and Simmons. ( Id. at CM/ECF p. 3.)

Brown grieved the above incidents to Bouer, who is the "facility operating officer" at the NRC. She did not address his concerns. ( Id. at CM/ECF pp. 2-3.) Brown separately alleged that he complained to NDHHS about the lack of programming at the NRC to "contribute to the African American culture, " and NDHHS officials did not respond to his complaints. ( Id. at CM/ECF pp. 4-5.)

Brown filed two Supplements (Filing Nos. 14 and 15) to his Complaint on November 4 and December 2, 2014. Brown alleged in these pleadings that, upon learning of his Complaint in this matter, Strong and Mastny retaliated against him by taking steps to ensure that he could not advance in his sex offender treatment program.

As relief in this matter, Brown seeks money damages and also asks to be moved out of the NRC. ( Id. at CM/ECF pp. 3-5.)

II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

Pro se plaintiffs must set forth enough factual allegations to "nudge[] their claims across the line from conceivable to plausible, " or "their complaint must be dismissed" for failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."). Regardless of whether a plaintiff is represented or is appearing pro se, the plaintiff's complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However, a pro se plaintiff's allegations must be construed liberally. Burke v. North Dakota Dep't of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).

Liberally construed, Plaintiff here alleges federal constitutional claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute, and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. ...


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