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Brown v. Kroll

United States District Court, D. Nebraska

October 10, 2017

MEE MEE BROWN, Plaintiff,
v.
JOHN KROLL, et al., Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff, Mee Mee Brown, filed her Complaint (Filing No. 1) on August 11, 2017, and has since been granted leave to proceed in forma pauperis (Filing No. 5). The court will now conduct an initial review of Plaintiff's Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2). As part of its initial review, the court will also consider Plaintiff's Motion to Amend Complaint (Filing No. 6), which was filed on August 29, 2017. The court will not review a Supplemental Complaint (Filing No. 7) that was filed without the court's permission on October 4, 2017, but instead will order it stricken. See Fed. R. Civ. P. 15(d).

         I. SUMMARY OF COMPLAINT

         Plaintiff, who has been civilly committed at the Norfolk Regional Center (“NRC”) since December 20, 2013, alleges that five NRC employees have violated her rights under the United States Constitution, the United Nations Declaration of Human Rights, and regulations promulgated by the Nebraska Department of Human Services. Plaintiff's constitutional claims allegedly arise under the First, Eighth, and Fourteenth Amendments.

         John Kroll, the Facility Operating Officer at NRC, allegedly has retaliated against Brown for “filing a lawsuit against the Administration and Staff” (Filing No. 1 at CM/ECF p. 3). The lawsuit is identified as Case No. 8:16CV569, which was filed in this court on December 29, 2016, and remains pending.[1] The retaliatory conduct allegedly consisted of Kroll “informing all NRC Staff Members to chart Plaintiff's conversations, calls to outside news media, and family, into Plaintiff['s] Treatment Chart, ” denying a request by Plaintiff to place a purchase order for unidentified merchandise and not responding to two similar requests, and “instructing staff to monitor Plaintiff's actions, including ... checks of Plaintiff's private room” (Filing No. 1 at CM/ECF pp. 3-5).

         Beverly Leushen, a Licensed Administrative Program Therapist, allegedly retaliated against Plaintiff by threatening other patients with “no contact” orders and negative treatment scores if they had any interaction with Plaintiff (Filing No. 1 at CM/ECF p. 5). On June 16, 2017, Leushen allegedly said, “Mee Mee thinks he's a girl and that's a distortion that will keep him here in treatment longer because he's capable of re-offending” (Filing No 1 at CM/ECF p. 1). Leushen allegedly has also said to other patients, “I can see Mee Mee being in treatment for awhile because he likes to file lawsuit[s] against staff, and his lawsuits are going nowhere, this ain't good for his treatment .... You should not be sitting next to or eating with Mee Mee. You both will be charted on, and this will reflect [sic] your treatment plan review” (Filing No. 1 at CM/ECF p. 6).

         Kathy Herron, a Licensed Nurse and Unit 3-East Supervisor, allegedly retaliated against Plaintiff “for expressing her ... transgender rights to access and wear female undergarments” and for filing Case No. 8:16CV569; Herron allegedly has warned other patients not to interact with Plaintiff and as a member of Plaintiff's treatment team “has contributed to all of the negative scoring that has kept Plaintiff at Level 1 for 8 months” (Filing No. 1 at CM/ECF p. 8). On June 13, 2017, Herron allegedly told Plaintiff, “Do not be using my unit staff to do anything involving this lawsuit that you got going on. You need to be sending that stuff to the treatment team. This lawsuit crap is not gonna move you forward here, it's only gonna set you back longer. So if you wanna be here longer, then keep this up. And you and the patients helping you will all have 10 ft. no contact orders placed on both of you” (Filing No. 1 at CM/ECF p. 8). And on June 19, 2017, Herron allegedly “voiced her opinion to Plaintiff being called Mee Mee and wearing a female bra, stating, ‘You were Cornelius when you came here, now you want us to call you Mee Mee? I may just keep calling you Cornelius'” (Filing No. 1 at CM/ECF p. 8).

         Rhonda Wilson, a Registered Nurse and a member of Plaintiff's treatment team, allegedly made an untruthful entry on Plaintiff's chart on July 27, 2017, stating that Plaintiff has an order prohibiting contact with other patients on Unit 3-East (Filing No. 1 at CM/ECF pp. 10-11). On July 28, 2017, after being contacted by Plaintiff about this entry, Wilson allegedly said, “Ain't you suing the staff here at NRC? What are you trying to get[?] If you think filing lawsuits is gonna get you out, or help you wear women['s] clothes, that ain't happening. So file all the lawsuits you want to, ain't no one gonna help you” (Filing No. 1 at CM/ECF p. 10). Wilson allegedly made another entry on Plaintiff's chart that evening, the substance of which is unknown to Plaintiff (Filing No. 1 at CM/ECF p. 10). On August 5, 2017, Wilson allegedly saw Plaintiff while at Unit 3-East and commented before walking away, “I don't understand how anybody can work over here with this” (Filing No. 1 at CM/ECF p. 11).

         Tabitha Waggoner, a Provisionally Licensed Group Facilitator and Social Worker, another member of Plaintiff's treatment team, allegedly retaliated against Plaintiff “by writing negative entries, and low scores in Plaintiff's treatment plan regarding Plaintiff's 8:16CV569 Civil Action in which ... David Mitchell is named as a defendant” (Filing No. 1 at CM/ECF p. 12). It is alleged that Waggoner and Mitchell were Plaintiff's group facilitators until they recused themselves after Plaintiff filed suit against Mitchell and others (Filing No. 1 at CM/ECF pp. 12-13). Waggoner allegedly has told other patients that Plaintiff “thinks he's a female and you guys should be careful hanging out with him so much that will keep you all here longer” (Filing No. 1 at CM/ECF p. 13). When a younger patient and Plaintiff were perceived to be spending a lot of time together, Waggoner, along with Wilson and Leushen, allegedly informed the patient that Plaintiff had engaged in “a sexual act-out” at the Lincoln Regional Center” (Filing No. 1 at CM/ECF p. 13). Waggoner allegedly “forwarded negative untrue entries to Plaintiff's Mental Health Board recently” and denied Plaintiff's request for information concerning the same (Filing No. 1 at CM/ECF p. 13). After Plaintiff submitted a request for another bra on August 1, 2017, Waggoner told him, “Your request is denied by the team, and why do you want a bra? Do you ever plan on getting out of here?” (Filing No. 1 at CM/ECF p. 13).

         Plaintiff seeks to recover compensatory and punitive damages from all Defendants, who are sued only in their individual capacities.

         II. SUMMARY OF MOTION TO AMEND COMPLAINT

         In the Motion to Amend Complaint, Plaintiff makes additional allegations against John Kroll and three of his co-defendants in Case No. 8:16CV569 (Linda Hansen, Dianna Mastny, and Lori Strong), as well as against three NRC employees who were not named as defendants either in that case or in the present action (Cheyenne Akes, Julie Redwing, and Kristine Boe Simmons).

         Lori Strong allegedly made the following “unwanted statements” to Plaintiff: On July 18, 2017, “Patients who try to use the courts too much will only make their stay here in treatment longer.” On July 23, 2017, “Dianna and I were being sued once before and nothing happened, so oh well.” On August 8, 2017, when Plaintiff stayed in his room to avoid any contract with Strong, “If you don't take your meals from me, you will be charted on” (Filing No. 6 at CM/ECF pp. 1-2).

         Plaintiff alleges grievances he submitted regarding Strong “were not returned in a timely manner by Defendant Kroll and Plaintiff submitted another grievance on August 9th (see Exhibit #6456) and after attempting to communicate with [Linda] Hansen on several occasions, Plaintiff received a response on August 14th” (Filing No. 6 at CM/ECF p. 2).Kroll's response, which was also signed by Julie Redwing, states: “Patient does [sic] Cheyenne Akes PRN MHSS-II or Lori Strong RN working with him. Will try to minimize their contact with you but there will be times that they will need to work with you” (Filing No. 1 at CM/ECF p. 6).

         Cheyenne Akes allegedly “has voiced to Plaintiff that she does not like nor accept Plaintiff's identifying as female, ” and on November 22, 2016, allegedly “falsely reported that Plaintiff [was] making inappropriate comments” (Filing No. 1 at CM/ECF p. 2). Plaintiff filed a grievance, which John Kroll responded to by indicating Plaintiff would not be having any further interactions with Akes, but she subsequently returned to work in Plaintiff's housing unit and allegedly “has gone out of her way to cause trouble for Plaintiff, some of which were intercepted [sic] by other staff, and reported to Defendant Kroll, and Boe Simmons who has failed to discipline [Akes]” (Filing No. 1 at CM/ECF p. 2). Plaintiff alleges Akes “has made entries in Plaintiff's charts from other units that Plaintiff is being disrespectful for refusing to interact, or accept any help from her” (Filing No. 1 at CM/ECF p. 2).

         Plaintiff further alleges she “has attempted several time to communicate with [Linda] Hansen who refuses to respond to any of Plaintiff's requests” (Filing No. 1 at CM/ECF p. 2). A response to a grievance submitted by Plaintiff on August 16, 2017, was responded to the next day by Kristine Boe Simmons and Julie Redwing. It states: “Information provided on previous grievance stands. The facility cannot guarantee no contact with Ms. Strong or Ms. Akes. As mentioned in previous grievance, we will try to minimize but there will be times this is unavoidable” (Filing No. 6 at CM/ECF p. 4).

         Plaintiff requests a restraining order to prevent Strong, Akes, Hansen, Mastny, Kroll, Redwing, and Boe Simmons from having “any and all interactions, verbal or otherwise [within] 50 feet” of Plaintiff (Filing No. 6 at CM/ECF p. 3).

         III. LEGAL STANDARDS ON INITIAL REVIEW

         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).

         IV. DISCUSSION

         A. Personal Involvement

         Liberally construed, Plaintiff here attempts to assert 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). “[T]he plaintiff must plead that a government official has personally violated the plaintiff's constitutional rights.” Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014).

         Because Plaintiff does not accuse Dianna Mastny of any wrongdoing in his Motion to Amend Complaint, she will not be made a party to this action.

         B. Eighth ...


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