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Brown v. Dept. of Health & Human Svs.

United States District Court, D. Nebraska

September 29, 2015



JOSEPH F. BATAILLON, District Judge.

This matter is before the court on a Motion to Dismiss (Filing No. 39) Plaintiff Cornelius Brown's Amended Complaint. When Brown filed his Amended Complaint, he was confined to inpatient treatment at the Norfolk Regional Center ("NRC") in Norfolk, Nebraska. The Motion to Dismiss was filed by Bob Gibson, the director of the Nebraska Department of Health and Human Services ("NDHHS"), and the following staff of the NRC: TiLnne Bouer, a facility operating officer; Kristine Simmons, an associate facility operating officer; John Kroll, the director of nursing, and Lori Strong, Dianna Mastny and Nancy Wragge, nurses at the NRC (together, "State Defendants").

State Defendants argue Brown's claims for damages against them in their official capacities are barred by sovereign immunity. In addition, they argue Gibson, Bouer, Simmons, and Kroll are entitled to qualified immunity. Finally, they argue Brown failed to state cognizable constitutional claims against Wragge, Mastny, and Strong. (Filing No. 40.) For the reasons that follow, the court will dismiss all of Brown's claims except his retaliation claims against Strong and Mastny in their individual capacities.


Brown filed his original Complaint (Filing No. 1) on September 30, 2014. He filed two Supplements (Filing Nos. 14 and 15) to his Complaint on November 4 and December 2, 2014. Brown, a black male, alleged staff at the NRC failed to address patients' use of racially derogatory language. In addition, he alleged two NRC staff, Strong and Mastny, retaliated against him by taking steps to ensure he could not advance in his sex-offender treatment program when they learned Brown had filed a civil action in this court.

The court conducted a pre-service screening of the Complaint and Supplements on December 9, 2014. (Filing No. 16.) The court dismissed all of Brown's claims except for the retaliation claims lodged against Strong and Mastny.

Defendants Strong and Mastny moved to dismiss Brown's claims against them on January 12, 2015. (Filing No. 23.) However, thereafter, Brown filed a number of motions seeking to further supplement his claims. On April 7, 2015, the court issued an order mooting all of the parties' filings and ordering Brown to file one comprehensive amended complaint alleging all of his claims against all of the defendants. (Filing No. 36.) Brown filed his Amended Complaint (Filing No. 37) on April 15, 2015. The court considers Brown's Amended Complaint the only operative complaint in this matter.

State Defendants moved to dismiss the Amended Complaint on May 6, 2015. (Filing No. 39.) Brown filed a Response (Filing No. 41) to the motion, to which State Defendants filed a Reply (Filing No. 43).


State Defendants move to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6). A motion under Rule 12(b)(1) allows the court to address the threshold question of jurisdiction, as judicial economy demands that the issue be decided at the outset rather than deferring it until trial. Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990). The party asserting jurisdiction bears the burden of proving that jurisdiction is proper. Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010).

State Defendants have also moved to dismiss this case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face in order to survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when a plaintiff pleads facts that allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Pro se complaints "must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties." Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir. 2014) (internal quotation marks and citations omitted).


Brown's Amended Complaint alleges various constitutional claims against a patient at the NRC, seven state employees, and the NDHHS. ( See Filing No. 37). Brown has sued the seven state employees in their official and individual capacities. (Filing No. 37 at CM/ECF p. ...

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