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Brown v. Department of Health & Human Services

United States District Court, D. Nebraska

April 26, 2017

CORNELIUS BROWN, Plaintiff,
v.
DEPARTMENT OF HEALTH & HUMAN SERVICES, CINDY DYKEMAN, Program Manager; SHANNON BLACK, Dr., Program Director; JANA STONER, Program Therapist; KYLE MALONE, Program Team Lead; LISA LAURELL, Program Social Worker; COURTNEY PHILIPS, Director of Dept. of Health & Human Services; CHALICE CLOSEN, Program Team Leader; and GAVIN WISEMAN, Patient at Lincoln Regional Center; Defendants.

          MEMORANDUM AND ORDER

          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.) The court construed Plaintiff's motion as an amended complaint and conducted an initial review. (Filing No. 11.) Upon initial review, the court ordered Plaintiff to file a second amended complaint asserting cognizable individual capacity claims against Defendants. (Id.) The court warned Plaintiff that an amended complaint will supersede, not supplement, all previous complaints. (Id.) Plaintiff subsequently filed a second amended complaint. (Filing No. 12.) The court now conducts review of Plaintiff's second Amended Complaint.

         I. SUMMARY OF SECOND AMENDED COMPLAINT

         Plaintiff alleges that the Douglas County Mental Health Board civilly committed him to the Lincoln Regional Center (“LRC”). (Filing No. 12 at CM/ECF p. 2.) Plaintiff now resides at the Norfolk Regional Center (“NRC”). He names as Defendants in his second Amended Complaint: Courtney Phillips (“Phillips”), Director of the Nebraska Department of Health and Human Services (“DHHS”), six employees who work at LRC, and Gavin Wiseman, a patient at LRC. (Id. at CM/ECF pp. 2-4.) He sues each of them in their individual capacities. (Id.) Plaintiff seeks declaratory, injunctive, and monetary relief. (Id. at CM/ECF pp. 30-31.)

         Phillips

         Plaintiff alleges that he sent letters to Phillips about his “transgender issues” and “other concerns of indifference treatment.” (Id. at CM/ECF p. 4.) He also alleges that she is “aware of the indifference” inflicted upon him at LRC because of a statement from Defendant Shannon Black (“Black”) that the administration at LRC is frequently in contact with DHHS. (Id. at CM/ECF p. 5.) Plaintiff believes that Phillips “has the ability to change[ ] or reply to his correspond[e]nces in a timely manner.” (Id.)

         Black

         Plaintiff alleges that Black retaliated against him when he received the minimum of four points on his February 12, 2016, treatment review plan for submitting a grievance on January 23, 2016, about staff member Marilyn Bailey's statement to Plaintiff that she was taking his “Bod Body Spray” because it contained alcohol and Plaintiff could drink it. (Id. at CM/ECF p. 6.) Plaintiff alleges that, while addressing the grievance with Black, Black told him, “Writing grievances here is not tolerated, it only takes away from your treatment, you need to manage this in other ways, on the street how would you manage this? So, if you want to be here another 2-3 more years then go ahead and shoot your foot off.” (Id.) He claims that she later stated, “You filed lawsuits against the Norfolk Regional Center and I got copies of that.” (Id.)

         Plaintiff claims that he discussed his concerns with Black about a patient with H.I.V. carelessly defecating on the toilet. (Id. at CM/ECF pp. 6-7.) Black told him that “there's nothing that would be done.” (Id. at CM/ECF p. 7.) Plaintiff states that nothing was done for four weeks. (Id.) He asserts that Black sent e-mails to Defendants Jana Stoner (“Stoner”), Cindy Dykeman (“Dykeman”), and Lisa Laurell (“Laurell”) informing them of Plaintiff's concerns and warning them against their opinions. (Id.) He also claims that she e-mailed the units that patients were no longer allowed to write concerns or call DHHS to discuss grievances. (Id.) Plaintiff alleges that Black retaliated against him when she denied him the opportunity to participate in the May 1st patient “Food Order Out.” (Id.) Finally, he claims that Black confronted him about “mentioning the Ombudsman” and stated, “Go ahead Cornelius, just jump off the cliff, and you'll be here that much longer.” (Id.)

         Dykeman

         Plaintiff claims that, during a discussion of a grievance, Dykeman stated to him, “I don't like having to go over to the administration building having to answer to grievances. Mentally ill is on your diagnosis and you need to not be so thin skinned. You need to get through the program.” (Id. at CM/ECF p. 9.) Plaintiff alleges that, during discussion of a second grievance concerning Defendant Gavin Wiseman (“Wiseman”), Dykeman stated, “I've been here for over 30 years, and patients who get caught up in writing [grievances] trying to change the rules tend to move slower through this program.” (Id. at CM/ECF p. 10.) After the discussion, Dykeman stopped Wiseman in the hallway and stated, “You just keep doing what you're doing, I'm gonna get you through here.” (Id.) Plaintiff alleges that, on April 26, 2016, he was moved into a single room directly across from the office of Stoner and Laurell. (Id.) He states that, the next day, Dykeman stated, “Go ahead and just jump off the cliff, ” when he requested to return to Norfolk. (Id.)

         Plaintiff alleges that he spoke to Dykeman about the smell of the washers and having to use the washers after another patient with an infection. (Id.) Dykeman commented in response that, if the issues with the washers continue, they will put everyone in sweats like the mentally ill patients. (Id. at CM/ECF p. 11.) Plaintiff claims that Dykeman then stated, “You and these grievances, and wanting to wear [women] clothes is a bit much for LRC, and your being legal minded, maybe we should send you back to NRC.” (Id.)

         Plaintiff alleges that, on October 28, 2016, he returned to NRC. (Id.) He states that on their visits to NRC, both Dykeman and Black have made negative comments about his transgender rights and suggested that he ...


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