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Brown v. Department of Health and Human Services

United States District Court, D. Nebraska

November 9, 2016

DEPARTMENT OF HEALTH AND HUMAN SERVICES, COURTNEY PHILIPS, Director, SHANNON BLACK, Program Director, KYLE MALONE, SOS Team Leader, WILLIAM BECKER, Program Therapist, CINDY DYKEMAN, Program Manager, and LISA LAURELL, Program Social Worker, et. al., Defendants.


          Richard G. Kopf Senior United States District Judge.

         Plaintiff Cornelius Brown (“Plaintiff”) filed his Complaint (Filing No. 1) on August 1, 2016, and a Supplemental Complaint (Filing No. 1-1) on August 24, 2016, and was subsequently granted leave to proceed in forma pauperis (Filing No. 6). The court now conducts an initial review of Plaintiff's complaints to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).


         Plaintiff alleges that the Douglas County Mental Health Board civilly committed him to the Lincoln Regional Center (“LRC”) in Lincoln, Nebraska, on September 9, 2015, and he was confined there when the incidents at issue occurred. Plaintiff has recently been moved to the Norfolk Regional Center (“NRC”). (Filing 7.) Plaintiff sues Courtney Philips, Director of the Nebraska Department of Health and Human Services (“DHHS”)-the state agency that operates the LRC and NRC-and five employees who work at the LRC for treating him unfavorably because he is transgender. Plaintiff sues each of the defendants in their individual and official capacities.

         Plaintiff's Complaint alleges that he is an “openly documented transgender who indentif[ies] as female, and has been dressing accordingly since age 16.” (Filing No. 1 at CM/ECF p. 4 (capitalization corrected).) In both May and June of 2016, Plaintiff approached defendant Kyle Malone, a team leader, and requested that Plaintiff be allowed to “dress in clothing that identifies with her gender identity” and to purchase and wear clothing consistent with Plaintiff's gender identity. Malone laughed at Plaintiff, told Plaintiff that her[1] “request is as good as denied, ” and said, “If you ever want to get outa here, just talk in your groups, & let the rest of this go.”

         In June 2016, Plaintiff mailed a complaint to defendant DHHS Director Philips concerning Plaintiff's “expression of her . . . transgender rights and the discrimination and inhumane treatment plaintiff has been subjected to, ” including being moved to a room with her own bathroom (instead of sharing a bathroom with another patient) that was visible to all LRC staff and administration, and being subject to staff members barging into her room without knocking. (Filing No. 1 at CM/ECF p. 5 (capitalization corrected).) Plaintiff alleges that Philips has not responded to her complaint.

         Plaintiff accuses defendant Shannon Black, LRC Program Director, of discrimination, mental anguish, and defamation of character during June and July 2016 for moving Plaintiff to a new room after she met with Black to discuss “being allowed to dress in attire that represents Plaintiff's gender identity.” (Filing No. 1 at CM/ECF p. 6 (capitalization corrected).) Plaintiff alleges that both Black and LRC Program Manager Cindy Dykeman told Plaintiff to submit in writing the items Plaintiff would like to have. Plaintiff complied[2], but has not received a reply and has thus “been denied to transition.” (Filing No. 1 at CM/ECF p. 6.)

         Plaintiff further complains that defendants Lisa Laurell, LRC Social Worker and Group Therapist, and William Becker, LRC Therapist and Group Facilitator, have “initiated negative retaliation” against Plaintiff by writing “negative entries” about Plaintiff to the mental health board. Plaintiff claims that other inmates have not been treated this way, even those who were caught having sexual interaction, viewing child pornograpy, and attacking a therapist.

         In her Supplemental Complaint (Filing No. 1-1), Plaintiff alleges that since the filing of her August 1, 2016, Complaint in this court, defendants Laurell, Black, and Becker have further retaliated against her. Specifically, Plaintiff says she filed her first Complaint and then contacted a staff writer for the local newspaper, the Lincoln Journal Star, who expressed interest in Plaintiff's Complaint and discussed writing a story on it. Thereafter, Laurell and Black sent an email throughout Plaintiff's housing unit at the LRC warning all staff that there would be “consequences for any communication with the plaintiff regarding her . . . concerns, and that no one from the media was allowed into the building to speak with the plaintiff without the named defendants['] permission.” (Filing No. 1-1 at CM/ECF p. 2 (capitalization corrected).)

         When Plaintiff approached Laurell about the situation, Laurell told Plaintiff to leave her office and, since then, Plaintiff's telephone calls have been monitored and Plaintiff has been subject to room searches for contraband three times a month, while other LRC residents are subject to contraband searches only once a month. Plaintiff claims that since she filed her lawsuit and talked to the newspaper, LRC staff has been directed to open her room door without knocking; LRC has generated more negative treatment notes about Plaintiff; and the LRC denied Plaintiff the proper amount of “points” during the June and August 2016 reporting periods. (Id. at p. 3.)

         Finally, Plaintiff alleges that she met with defendant Black[3] in August 2016, and Black “repeatedly denied” Plaintiff's requests concerning her gender identity, stating, “All this is gonna do is shoot you in the foot, this will keep you down here longer, so just focus on getting out of here.” (Id.) Plaintiff has not received any further communication from the defendants since this meeting.

         Pursuant to 42 U.S.C. § 1983, Plaintiff seeks to assert claims for declaratory, injunctive, and monetary relief for violations of the First, Fifth, Eighth, and Fourteenth Amendments that occurred when the defendants subjected Plaintiff to gender discrimination, cruel and unusual punishment, violation of Plaintiff's right to equal protection, and defamation of character related to her “constitutional rights to free gender expression.” (Filing No. 1-1 at CM/ECF p. 3.) As far as injunctive relief is concerned, Plaintiff wishes to dress according to her gender identity at the LRC and requests to be transferred to a treatment facility that will not subject her to discrimination. (Filing No. 1 at CM/ECF pp. 8-9.)

         Liberally construed, Plaintiff claims the defendants denied her equal protection by discriminating against her based on gender; subjected her to First Amendment retaliation; denied her due process under the Fourteenth Amendment; and defamed her character.


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

         Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims across the line from conceivable to plausible, ” or “their complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

         “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         Liberally construed, Plaintiff here alleges federal constitutional claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

         III. ...

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