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Brown v. Department of Health & Human Services

United States District Court, D. Nebraska

February 7, 2017

DEPARTMENT OF HEALTH & HUMAN SERVICES, ANTHONY WALTERS, Chief Executive Officer; CINDY DYKEMAN, Program Manager; SHANNON BLACK, Dr., Program Director; JANA STONER, Program Therapist; KYLE MALONE, Program Team Lead; and LISA LAURELL, Program Social Worker, Defendants.


          Richard G. Kopf Senior United States District Judge

         Plaintiff filed his Complaint on June 3, 2016. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 6.) On December 2, 2016, Plaintiff filed a “Motion: For Leave to File an Amended Complaint.” (Filing No. 8.) On December 7, 2016, the court granted Plaintiff leave to file an amended complaint by January 6, 2017, and advised Plaintiff that his amended complaint would supersede, rather than supplement, his original complaint. (Filing No. 10.) Upon reconsideration, the court construes Plaintiff's “Motion: For Leave to File an Amended Complaint” as an Amended Complaint. The court now conducts an initial review of Plaintiff's Amended Complaint 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”). (Filing No. 8 at CM/ECF p. 2.) Plaintiff now resides at the Norfolk Regional Center (“NRC”). (Id.) He names as Defendants in his Amended Complaint: the Nebraska Department of Health and Human Services (“DHHS”), Courtney Phillips (“Director Phillips”), Director of DHHS, six employees who work at LRC, and Gavin Wiseman, a patient at LRC. (Id. at CM/ECF pp. 3-4.) Plaintiff sues Wiseman in his individual capacity. (Id. at CM/ECF p. 4.) He sues each of the remaining defendants in their individual and official capacities. (Id.)

         Plaintiff filed a grievance because 1) a staff member[1] told him that he might drink his “Bod Body Spray” because it contained alcohol, 2) because Lisa Laurell (“Laurell”), a social worker and group facilitator, called him “mentally ill, ” and 3) because the washers at the facility are filthy and smell of mold and dirt. (Id. at CM/ECF pp. 3-4, 15-16.) Plaintiff alleges that, after he filed the grievance, he spoke to Defendant Shannon Black (“Black”), the program director, and Defendant Cindy Dykeman (“Dykeman”), the sex offender services program manager. (Id. at CM/ECF pp. 2-4.) Plaintiff alleges that Black stated, “Using the grievance process is something that's not tolerated, ” and suggested to him that he learn to manage and process issues in other ways. (Id. at CM/ECF p. 5.)[2] Plaintiff alleges that Black also stated, “You've filed lawsuits against NRC (Norfolk Regional Center) and I've got copies of that.” (Id.) He maintains that Black sent several e-mails to some of the other defendants informing them of his complaint and how they should respond to him. (Id.) Plaintiff believes that Black “demonstrates poor professional leadership.” (Id.)

         Plaintiff alleges that Dykeman, during the conversation, commented, “I don't like having to go over to the administration building having to answer to grievances.” (Id.) He alleges that Dykeman repeatedly told him, “I've been here over 30 years, and patients who get caught up in writing grievances tend to move slower through this program.” (Id.) Plaintiff claims that Dykeman stated, “If these issues with the washers become too much, we'll just put all of the patients in sweats, as they are in Building #3 and #5, ” which Plaintiff alleges house the mentally ill patients. (Id.)

         Plaintiff alleges that he approached Defendant Kyle Malone (“Malone”), a team leader, about the unsanitary washers and about having to share the washers with another patient with an infected genital area. (Id. at CM/ECF pp. 3, 6.) Plaintiff maintains that Malone angrily responded, “Why is this such a big deal? You writing grievances, who can say you didn't bring the infection here.” (Id. at CM/ECF p. 6.) He claims that Malone walked into his office and closed the door. (Id.) Plaintiff alleges that Malone has displayed several forms of retaliation against him, including poor to negative entries on Plaintiff's treatment files to the Mental Health Board and putting Plaintiff in a secluded, private room in complete view of all of the administrative staff. (Id.) He states that Malone is party to another civil complaint about the violation of Plaintiff's transgender rights. (Id.); See Brown v. Department of Health and Human Services, et al., Case No. 8:16CV377 (D. Neb.).

         Plaintiff alleges that Defendant Jana Stoner (“Stoner”), a therapist and supervisor, is a personal therapist for another patient, Gavin Wiseman (“Wiseman”). (Id. at CM/ECF pp. 3, 7.) Plaintiff claims that Wiseman told him that Stoner stated during a meeting with Wiseman, “Because of who he is, and what he is, (referring to plaintiff who is transgender), you need to watch yourself.” (Id. at CM/ECF p. 7.) Plaintiff alleges Stoner later approached him and another staff member who is black, who Plaintiff was speaking with about “the problem with Defendant Wiseman, ” and stated, “You are not to talk about other patients with patients.” (Id.) Plaintiff filed a grievance. (Id. at CM/ECF pp. 7, 21-22.) He alleges that he was moved the next day to a private room “as a result of Defendant Stoner, Malone, Black, and Dykeman.” (Id. at CM/ECF p. 7.)

         Plaintiff alleges that Stoner was made aware of a sexual act between Plaintiff and Wiseman. (Id.) According to Plaintiff, Wiseman exposed himself in Plaintiff's room and Plaintiff masturbated Wiseman. (Id. at CM/ECF p. 8.) Plaintiff alleges that he was subsequently placed on “several inhumane restrictions” (ward restriction and day hall restriction without staff), while Wiseman received only “no contact restrictions” because Stoner protected Wiseman. (Id. at CM/ECF pp. 7-8.) Plaintiff alleges that he was humiliated, which resulted in a loss of sleep and feeling attacked by the administration. (Id. at CM/ECF p. 8.) He also claims that Defendants gave him negative scores on his treatment plan, which hindered his advancement in treatment, “after Defendants Clasen, Black, Stoner, and Dykeman were aware of the mutually consented sexual act-out.” (Id. at CM/ECF p. 10.) He states that Wiseman, however, advanced in treatment. (Id.) Plaintiff alleges that this treatment caused him to request return to NRC. (Id.) He claims that he has heard that Wiseman has since made statements of participating in the sexual act “to offset Plaintiff's civil action.” (Id. at CM/ECF p. 8.)

         Plaintiff alleges that Laurell and Black photocopied entries from his journal to “use as leverage” for filing this action and as an attempt to prevent him from seeking assistance from the Lincoln Journal Star and other legal help. (Id.) Plaintiff alleges that “he was also subject to retaliation by Defendant Chalice Closen, [3] a team leader, for grievances submitted in regards to her showing favoritism in the white patients and negative interactions with the black patients.”[4] (Id. at CM/ECF pp. 3, 8.) He alleges that he sent his grievances and concerns to Director Phillips and received no response. (Id. at CM/ECF p. 9.)

         Plaintiff seeks declaratory, injunctive, and monetary relief. (Id. at CM/ECF pp. 11-12.)


         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 ...

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