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Brown v. Department of Health & Human Services

United States District Court, D. Nebraska

June 2, 2017

MEE MEE BROWN, Plaintiff,
v.
DEPARTMENT OF HEALTH & HUMAN SERVICES, SHERI DAWSON, Director of Behavioral Health, JOHN KROLL, Director of Nursing @ Norfolk Regional Center, DIANE SCHUMACHER, Physician Assistant @ Norfolk Regional Center, AMR BELTAGUI, Personal Psychiatrist @ Norfolk Regional Center, LINDA HANSEN, Unit Supervisor @ Norfolk Regional Center, DIANNA MASTNY, and LORI STRONG, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         After review of Plaintiff's Complaint and Amended Complaint, the court granted Plaintiff leave to file a second amended complaint to allege how each of the defendants[1] were personally involved in (1) denying Plaintiff medical evaluation by a specialist and estrogen therapy for gender-identity disorder (“GID”) (deliberate indifference claim); (2) failing to provide Plaintiff a reasonably safe environment in the form of a private bathroom (Fourteenth Amendment substantive due process claim); and (3) retaliating against Plaintiff for filing lawsuits and contacting the ombudsman (First Amendment retaliation claim). (Filing No. 15.)[2]

         Plaintiff has now filed a Second Amended Complaint (Filing No. 22) and Supplemental Second Amended Complaint (Filing No. 23) which the court will review to determine whether any of Plaintiff's claims may proceed to service of process.[3]

         I. SUMMARY OF SECOND AMENDED COMPLAINT & SUPPLEMENT

         Plaintiff is “an openly documented transgender male-to-female patient” at the Norfolk Regional Center (“NRC”), where she is civilly committed. Plaintiff seeks declaratory, injunctive[4], and monetary relief against the Nebraska Department of Health and Human Services and the other defendants in their individual capacities for violating her constitutional rights to treatment for her objectively serious medical need (gender-identity disorder), to a reasonably safe environment, and to engage in activity protected by the First Amendment. Specifically, Plaintiff makes the following allegations[5] against each defendant:

         Sheri Dawson

         Dawson is the Director of Behavioral Health with the Nebraska Department of Health and Human Services (“NDHHS”) with responsibility for the overall operations of various institutions, including the NRC. Dawson refused Plaintiff's requests to have her own private bathroom after male patients looked under a stall where Plaintiff was using the toilet. At some point, Plaintiff was allowed to place a cone in front of the patient bathroom while she used the restroom, but “several male patients entered the bathroom anyways.” (Filing No. 22 at CM/ECF p. 4.) Dawson also refused to allow Plaintiff to “dress in clothing that matches her gender identity.” (Filing No. 22 at CM/ECF p. 5.) After Plaintiff made several unanswered written and telephonic complaints to Dawson regarding these matters, Dawson told Plaintiff to forward all future complaints to the Nebraska Attorney General's Office.

         John Kroll

         Kroll is the Acting Facility Operating Officer at the NRC with responsibility for the operations and welfare of all inpatient residents at the NRC. Kroll refused Plaintiff's requests to have her own private bathroom after male patients looked under the stall where Plaintiff was using the toilet, thereby putting Plaintiff at “risk of harm by other male patients.” (Filing No. 22 at CM/ECF p. 7.) Kroll wrote negative entries in Plaintiff's treatment file to the mental health board in retaliation for Plaintiff's desire to “exercise her transgender rights.” (Filing No. 22 at CM/ECF p. 6.) Kroll has also refused to allow Plaintiff to progress in her treatment (keeping her at “Level 1” for the past six months), stating that “Plaintiff's voicing her rights to be allowed to dress in female dress[] is a treatment interfering behavior[] that the staff and named defendants do not like.” (Filing No. 22 at CM/ECF p. 6.)

         Plaintiff complains that when she was transferred from the Lincoln Regional Center (“LRC”) to the Norfolk Regional Center, Kroll and the rest of Plaintiff's treatment team classified her at “Level 1” (apparently the lowest level), while two other patients who were forced to transfer to NRC started at Levels 2 and 3, despite the fact that one of these patients hit a LRC staff member and the other threatened a LRC staff member's family. Plaintiff alleges that her failure to advance on the treatment scale is “solely related to her transgender rights.” (Filing No. 22 at CM/ECF p. 7.)

         Diane Schumacher

         Schumacher is a physicians' assistant at the NRC who met with Plaintiff during intake when she arrived at NRC. Schumacher approved Plaintiff's request to dress according to her gender identity, but denied her permission to use a private bathroom “because [Plaintiff] was categorized as male by genital.” (Filing No. 22 at CM/ECF p. 9.) Schumacher also denied Plaintiff's request to begin taking estrogen and reminded Plaintiff that she was allowed to wear a bra-something her treatment team did not condone-and that “this is an all[-]male facility, there's nothing that I can do about it, so let's just work on getting you back to Lincoln.” (Filing No. 22 at CM/ECF p. 10.) Schumacher has since refused to communicate with Plaintiff.

         Plaintiff alleges that she has suffered “mental and emotional stress” due to Schumacher's indifference to her serious medical needs “and has even at times contemplated mutilating her penis.” (Filing No. 22 at CM/ECF p. 10.) Plaintiff alleges that Schumacher was aware that she took hormone pills before she was incarcerated.

         Amr Beltagui

         Beltagui is a psychiatrist at the NRC who “suggest[ed] that Plaintiff be seen by a hormone therapist to determine Plaintiff's gender[-]identity disorder, but then disregarded Plaintiff's request to hormone therapy.” (Filing No. 22 at CM/ECF p. 10.) Two weeks after Plaintiff arrived at NRC, Beltagui approved Plaintiff's request to wear a bra, but denied her request to wear female clothing. Plaintiff alleges that she has suffered “mental and emotional stress” due to Beltagui's indifference to her serious medical need “and has even at times contemplated mutilating her penis.” (Filing No. 22 at CM/ECF p. 10.) Plaintiff alleges that Beltagui was aware that she took hormone pills before she was incarcerated.

         Linda Hansen

         Hansen is a NRC unit supervisor. Plaintiff complains that when she was transferred from the LRC to the NRC, Hansen and the rest of Plaintiff's treatment team classified her at “Level 1” (apparently the lowest level), while two other patients who were forced to transfer to NRC started at Levels 2 and 3, despite the fact that one of these patients hit a LRC staff member and the other threatened a LRC staff member's family. Plaintiff alleges that her continued failure to advance on the treatment scale is “solely related to her transgender rights.” (Filing No. 22 at CM/ECF p. 7.) Hansen has allegedly refused to allow Plaintiff to progress in her treatment (keeping her at “Level 1” for the past six months), stating that “Plaintiff's voicing her rights to be allowed to dress in female dress[] is a treatment interfering behavior[] that the staff and named defendants do not like.” (Filing No. 22 at CM/ECF p. 6.) Plaintiff also alleges that Hansen, Mastny, and Strong “conspired” in giving Plaintiff negative “scores” after Plaintiff contacted the ombudsman regarding the discrimination she was experiencing due to her attempt to transition from a man into a woman.

         Dianna Mastny

         Mastny is a NRC unit supervisor and is part of Plaintiff's treatment team. Plaintiff complains that when she was transferred from the LRC to the NRC, Mastny and the rest of Plaintiff's treatment team classified her at “Level 1” (apparently the lowest level), while two other patients who were forced to transfer to NRC started at Levels 2 and 3, despite the fact that one of these patients hit a LRC staff member and the other threatened a LRC staff member's family. Plaintiff alleges that her continued failure to advance on the treatment scale is “solely related to her transgender rights.” (Filing No. 22 at CM/ECF p. 7.) Mastny has refused to allow Plaintiff to wear female clothing and to progress in her treatment (keeping her at “Level 1” for the past six months), stating that “Plaintiff's voicing her rights to be allowed to dress in female dress[] is a treatment interfering behavior[] that the staff and named defendants do not like.” (Filing No. 22 at CM/ECF p. 6.) Mastny, Strong, and Hansen allegedly “conspired” in giving Plaintiff negative “scores” after Plaintiff contacted the ombudsman regarding the discrimination she was experiencing due to her attempt to transition from a man into a woman.

         Lori Strong

         Strong is a registered nurse at the NRC and is part of Plaintiff's treatment team. Plaintiff complains that when she was transferred from the LRC to the NRC, Strong and the rest of Plaintiff's treatment team classified her at “Level 1” (apparently the lowest level), while two other patients who were forced to transfer to NRC started at Levels 2 and 3, despite the fact that one of these patients hit a LRC staff member and the other threatened a LRC staff member's family. Plaintiff alleges that her failure to advance on the treatment scale is “solely related to her transgender rights.” (Filing No. 22 at CM/ECF p. 7.) Strong has refused to allow Plaintiff to wear female clothing and to allow Plaintiff to progress in her treatment (keeping her at “Level 1” for the past six months), stating that “Plaintiff's voicing her rights to be allowed to dress in female dress[] is a treatment interfering behavior[] that the staff and named defendants do not like.” (Filing No. 22 at ...


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