Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. Dawson

United States District Court, D. Nebraska

May 8, 2018

MEE MEE BROWN, Plaintiff,
v.
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, LORI STRONG, DR. JEAN LANGE, DR. DAVID MITCHELL, BEVERLY LEUSHEN, and DONNA CRIST, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court on the Defendants' Motion for Summary Judgment (Filing No. 43) and Defendants' Motion to Strike (Filing No. 54). For the reasons that follow, Defendants' Motion for Summary Judgment is granted, and Defendants' Motion to Strike is denied.

         I. BACKGROUND

         Plaintiff Mee Mee Brown (“Brown”) filed this action pursuant to 42 U.S.C. § 1983 against Susan Dawson (“Dawson”), the Nebraska Department of Health and Human Services (“DHHS”) Director of the Division of Behavioral Health, and various employees of the Norfolk Regional Center (“NRC”) where Brown was committed for inpatient sex offender treatment.[1] Brown seeks declaratory, injunctive, [2] and monetary relief against the defendants in their individual capacities for denying Brown a medical evaluation by a specialist and estrogen therapy for gender-identity disorder (“GID”) (deliberate indifference claim); preventing Brown from advancing in her treatment program in retaliation for Brown filing lawsuits and contacting the Ombudsman regarding the exercise of her “transgender rights” (First Amendment retaliation claim); and treating Brown unfavorably because of her gender non-conformity (equal protection claim).

         After a review of the Second Amended Complaint (Filing No. 22) and Supplemental Second Amended Complaint (Filing No. 23), the court allowed Brown's following claims to proceed: (1) deliberate indifference claim against defendants Diane Schumacher (“Schumacher”) and Amr Beltagui (“Dr. Beltagui”); (2) First Amendment retaliation claim against defendants John Kroll (“Kroll”), Linda Hansen (“Hansen”), Dianna Mastny (“Mastny”), Lori Strong (“Strong”), Jean Laing (“Dr. Laing”), David Mitchell (“Dr. Mitchell”), Beverly Lueshen (“Lueshen”), and Donna Crist (“Crist”); and (3) equal protection claim against all defendants. (Filing No. 28 at CM/ECF pp. 9-11, 14.)[3]

         II. RELEVANT UNDISPUTED MATERIAL FACTS[4]

         1. The DHHS administers the clinical programs and services of the LRC and the NRC. Neb. Rev. Stat. § 83-101.06.

         2. The DHHS supervises the LRC and the NRC. Neb. Rev. Stat. § 83-107.01.

         3. The state hospital for the mentally ill established in Madison County, Nebraska is known as the NRC. Neb. Rev. Stat. § 83-305.

         4. The state hospital for the mentally ill established in Lancaster County, Nebraska is known as the LRC. Neb. Rev. Stat. § 83-305.

         5. On December 19, 2013, Brown was committed to the DHHS for inpatient sex offender treatment by the Douglas County Mental Health Board after being identified as a dangerous, untreated sex offender. (Filing No. 45-2 at CM/ECF p. 1, ¶ 5; Filing No. 52 at CM/ECF p. 2.)

         6. Brown was a patient at the NRC from December 2013 through September 2015. (Filing No. 45-2 at CM/ECF p. 2, ¶ 6; Filing No. 52 at CM/ECF p. 2.)

         7. Brown was a patient at the LRC from September 2015 until Brown's readmission to the NRC in October 2016. (Filing No. 45-2 at CM/ECF p. 2, ¶ 7; Filing No. 52 at CM/ECF p. 2.)

         8. Brown was returned to the NRC because of repeated threats of aggression and refusal to follow a safety plan after it was discovered that Brown had been involved in a sexual relationship with a peer. (Filing No. 45-2 at CM/ECF p. 2, ¶ 8; Filing No. 45-8 at CM/ECF p. 2, ¶ 9; Filing No. 52 at CM/ECF p. 2.)

         Sheri Dawson

         9. At all times relevant, Dawson was the DHHS Director of the Division of Behavioral Health. (Filing No. 45-1 at CM/ECF p. 1, ¶ 3.)

         10. Dawson never personally refused Brown's requests to have a private bathroom after male patients allegedly looked under a stall where Brown was using a toilet. Any decisions regarding these requests would have been made by the NRC administration. (Filing No. 45-1 at CM/ECF p. 2, ¶ 7.)

         11. Dawson never personally refused Brown's request to dress in woman's clothing. Any decisions regarding these requests would have been made by the NRC administration. (Filing No. 45-1 at CM/ECF p. 2, ¶ 8.)

         12. Dawson received a written complaint from Brown on November 17, 2016. (Filing No. 45-1 at CM/ECF p. 2, ¶ 9.) Brown referenced filing civil lawsuits in the complaint. (Filing No. 45-1 at CM/ECF p. 2, ¶ 12, pp. 4-5 (Exhibit A).)

         13. Dawson received a written complaint from Brown dated November 28, 2016. (Filing No. 45-1 at CM/ECF p. 2, ¶ 10.) Brown referenced filing civil lawsuits against DHHS in the complaint. (Filing No. 45-1 at CM/ECF p. 2, ¶ 13, pp. 6-7 (Exhibit B).)

         14. Dawson provided Brown a written response dated December 15, 2016. (Filing No. 45-1 at CM/ECF p. 2, ¶¶ 11, 14, p. 9 (Exhibit C).) Dawson requested Brown contact the Nebraska Attorney General's Office regarding the concerns. (Filing No. 45-1 at CM/ECF p. 9.)

         John Kroll

         15. Kroll has been the Facility Operating Officer for the NRC since July 1, 2017. Kroll served as the Interim Facility Operating Officer at the NRC from January 2017 until July 1, 2017. Kroll served as the Director of Nursing at the NRC from January 1989 to January 2017. (Filing No. 45-2 at CM/ECF p. 1, ¶ 3; Filing No. 52 at CM/ECF p. 3.)

         16. Kroll has been employed by the NRC for approximately 41 years. (Filing No. 45-2 at CM/ECF p. 1, ¶ 4.)

         17. Upon Brown's readmission to the NRC, Kroll's involvement with Brown was mainly through responding to grievances. (Filing No. 45-2 at CM/ECF p. 2, ¶ 9.)

         18. Kroll talked to Brown regarding Brown's request for a private bathroom. Brown was not able to provide any reason why a private bathroom was required other than personal preference. Kroll advised Brown that the only time the NRC approves a patient for a private bathroom is when the patient has a physical need for a private bathroom. The NRC does not have enough room for Brown to have a private bathroom. (Filing No. 45-2 at CM/ECF p. 2, ¶ 10.)

         19. Brown was provided an order that Brown may use the bathroom on the unit in private. Other patients on the unit were instructed not to use the bathroom when Brown was using it.[5] (Filing No. 45-2 at CM/ECF p. 2, ¶ 11.)

         20. Brown submitted a grievance about another patient peering under the toilet stalls while Brown was using a toilet stall in the unit bathroom. Kroll talked to the patient after Brown submitted the grievance. The patient did not realize he was not supposed to be in the bathroom while Brown was in a bathroom unit stall. The patient advised that he would not use the bathroom while Brown was in the bathroom anymore. Kroll advised Brown of his discussion with the other patient, and Brown was fine with the resolution of the matter.[6] (Filing No. 45-2 at CM/ECF p. 2, ¶ 12.)

         21. Brown also submitted a complaint that staff member Rose Prather (“Prather”), a Mental Health Security Specialist, was not enforcing with other patients Brown's order to be allowed to use the bathroom alone. Kroll advised Prather of the concern about monitoring the bathroom when Brown used it, and Prather said she was unaware of the order but would work to assist other patients in not entering the bathroom when Brown was in it. To Kroll's knowledge, there have been no further issues regarding Brown having privacy while using the bathroom on the unit. (Filing No. 45-2 at CM/ECF p. 3, ¶ 12.)

         22. Kroll never made an entry in Brown's treatment file to the mental health board. It is the treatment team that makes entries in Brown's treatment file. Kroll never corresponded with the mental health board about Brown. (Filing No. 45-2 at CM/ECF p. 3, ¶ 13.)

         23. Kroll never discussed Brown's progression in treatment with Brown. Kroll never refused Brown the ability to progress past Level One in treatment. Kroll has no influence on Brown's treatment progression or scoring, or the treatment progression or scoring of other NCR patients. The progression of Brown's treatment is a treatment team decision. (Filing No. 45-2 at CM/ECF p. 3, ¶ 15.)

         24. Since being readmitted to the NRC, Brown has been approved to wear female undergarments and gender neutral outerwear. Brown was agreeable to that arrangement. (Filing No. 45-2 at CM/ECF p. 3, ¶ 16.)

         25. In order to preserve the safety and security of the NRC, Brown is not approved to wear dresses; midriff, low-cut or see-through shirts or blouses; high heels; stockings; nylons; or make-up. The NRC is a mental health hospital treating patients who have difficulty managing sexually deviant thoughts and ideas. The NRC must prevent patients from making unwanted sexual advances toward other patients, or inappropriately acting out on their sexual urges. (Filing No. 45-2 at CM/ECF pp. 3-4, ¶ 17.)

         26. All patients of the NRC are required to wear appropriate clothing at all times. Tank tops and sleeveless shirts are only appropriate during participation in athletic activities and during courtyard time. Net shirts are not allowed. (Filing No. 45-2 at CM/ECF p. 4, ¶ 18.)

         27. All employees, consultants, and students of the NRC are required to wear appropriate clothing that provides for safety and security needs. Shorts or skorts are not worn. Crop pants are allowed but must be at mid-calf length or longer. Spandex pants, leggings, sweat pants, running/workout pants, lounge pants, or any type of pajama outfits are not allowed. The Personal Development Supervisor and staff may wear work out gear commensurate with the activities and expectations of the facilitation of their groups and activities. Shirts/blouses must be appropriate at all times. No spaghetti straps or tank tops are allowed. No midriff or cleavage may be exposed. Skirts are appropriate to the responsibilities of the staff's position and are not provocative and must be mid-calf or longer. Clothing that is excessively tight or see-through is not allowed. Footwear that increases the risk of falling is not allowed. (Filing No. 45-2 at CM/ECF p. 4, ¶ 19.)

         28. All NRC patients and visitors are expected to be neatly dressed and groomed for visits. Visiting may be denied when appropriate clothing is not worn. Shorts, skorts, mini-skirts, tank tops, low-cut tops, see-through, or other provocative clothing are not allowed during a visit. (Filing No. 45-2 at CM/ECF p. 4, ¶ 20.)

         29. The NRC received a copy of a letter from a judge that Brown had threatened self-harm. NRC staff met with Brown about the threat of self-harm. NRC staff did not assess Brown to be self-harmful after the meeting. (Filing No. 45-2 at CM/ECF p. 5, ¶ 21.)

         30. Kroll does not recall if Brown spoke to the Ombudsman. Kroll reviewed the file he has on Ombudsman's Office Inquiries and found nothing on Brown for 2017 where the Ombudsman's Office asked Kroll for information on Brown. (Filing No. 45-2 at CM/ECF p. 5, ¶ 22.)

         31. Kroll never prevented Brown from advancing in treatment because Brown contacted the Ombudsman. (Filing No. 45-2 at CM/ECF p. 5, ¶ 23.)

         32. Kroll does not care if Brown contacts the Ombudsman. (Filing No. 45-2 at CM/ECF p. 5, ¶ 24.)

         33. Kroll believes Brown has the right to contact the Ombudsman. (Filing No. 45-2 at CM/ECF p. 5, ¶ 25.)

         34. Kroll never prevented Brown from advancing in treatment because Brown sued him. Kroll has no authority on whether or not Brown advances in treatment. (Filing No. 45-2 at CM/ECF p. 5, ¶ 26.)

         35. Kroll does not remember the date in which he was served with the lawsuit. (Filing No. 45-2 at CM/ECF p. 5, ¶ 27.)

         36. Brown is not the first patient to sue Kroll. (Filing No. 45-2 at CM/ECF p. 5, ¶ 28.)

         37. Kroll is not offended when a patient files a lawsuit against him. (Filing No. 45-2 at CM/ECF p. 5, ¶ 29.)

         38. Kroll believes Brown has the right to file a lawsuit. (Filing No. 45-2 at CM/ECF p. 5, ¶ 30.)

         39. On January 4, 2017, Brown was diagnosed with gender dysphoria at a Diagnostic Staff Meeting. This diagnosis did not affect any decisions regarding the clothing which Brown is approved to wear as a patient at the NRC. (Filing No. 45-2 at CM/ECF p. 5, ¶ 31.)

         40. On July 6, 2017, Kroll provided a written response to the written referral request submitted by Dr. Beltagui on December 2, 2016. Kroll advised that the referral was not approved because the plan was to verify if Brown was currently being treated with hormone therapy. Kroll stated that Brown provided information that Brown had been treated by Dr. Walburn at the Nebraska Medical Center. Kroll advised that the NRC received a letter from Dr. Walburn that Brown had not been treated with hormone therapy. Kroll stated that the request was denied due to no verification of patient under hormone therapy. (Filing No. 45-2 at CM/ECF pp. 5-6, ¶ 32.)

         Diane Schumacher

         41. Schumacher has been employed at the NRC since December 1995. (Filing No. 45-3 at CM/ECF p. 1, ¶ 3.)

         42. Schumacher is a licensed Physician Assistant in the State of Nebraska. Schumacher has a Master's Degree from the University of Nebraska Medical Center (“UNMC”) Physician Assistant program. Schumacher has a Bachelor's of Science from the University of Nebraska-Lincoln (“UNL”) and from UNMC. (Filing No. 45-3 at CM/ECF p. 1, ¶ 4.)

         43. At all times relevant, Schumacher was a Physician Assistant at the NRC. (Filing No. 45-3 at CM/ECF p. 1, ¶ 5; Filing No. 52 at CM/ECF p. 8.)

         44. Schumacher does not recall being involved in the decision making regarding Brown's request for a private bathroom. (Filing No. 45-3 at CM/ECF p. 2, ¶ 9; Filing No. 53 at 104-05, Response to Interrogatory No. 15.)

         45. Schumacher never denied Brown's request to take estrogen. Schumacher recalls discussing Brown's requests for hormone therapy and estrogen treatment on several occasions and advising the requests needed to be directed to the psychiatrist. Schumacher recalls advising Brown on several occasions that it was not a part of her scope of practice to grant requests for hormone therapy or estrogen treatment. (Filing No. 45-3 at CM/ECF p. 2, ¶ 11; Filing No. 53 at 104, Responses to Interrogatory Nos. 13, 14.)

         46. Schumacher was not aware of Brown having hormone treatment before Brown was incarcerated. (Filing No. 45-3 at CM/ECF p. 2, ¶ 12.)

         47. Schumacher does not recall seeing any documents that showed a physician had prescribed hormone treatment for Brown. (Filing No. 45-3 at CM/ECF p. 2, ¶ 13.)

         48. Other than Brown's self-report, Schumacher was not aware of Brown taking hormone pills prior to being incarcerated. (Filing No. 45-3 at CM/ECF p. 2, ¶ 14.)

         49. Several attempts were made by the NRC staff to obtain the medical records to establish Brown had hormone treatment prior to being incarcerated. Brown would provide the name of doctors whom Brown claimed performed such treatments. The NRC would locate the addresses of the doctors and send records requests to them. The NRC would thereafter receive responses from the doctors stating no records were found regarding Brown. (Filing No. 45-3 at CM/ECF p. 3, ¶ 15.)

         50. In her capacity as a Physician Assistant at the NRC, Schumacher attended to Brown's medical needs in the way in which a Physician Assistant is trained to attend to the medical needs of a patient. (Filing No. 45-3 at CM/ECF p. 3, ¶ 16.)

         Dr. Amr Beltagui

         51. Dr. Beltagui was employed as a Staff Psychiatrist at the NRC from August 1, 2014 to July 31, 2017. Dr. Beltagui rendered psychiatric care to the NRC patients to whom he was assigned during this timeframe. (Filing No. 45-4 at CM/ECF p. 1, ¶ 3.)

         52. Dr. Beltagui holds a Bachelor of Medicine and Bachelor of Surgery (MBChB) degree from the University of Alexandria, Egypt. Dr. Beltagui holds an Educational Commission for Foreign Medical Graduates (ECFMG) certificate. Dr. Beltagui holds a Certificate of Residency from the University at Buffalo, State University of New York. Dr. Beltagui holds a Medical Doctor (MD) degree from the State University of New York. Dr. Beltagui is Board Certified by the American Board of Psychiatry and Neurology. (Filing No. 45-4 at CM/ECF p. 1, ¶ 4.)

         53. In his capacity as Staff Psychiatrist at the NRC, Dr. Beltagui met with Brown, initially, on a monthly basis, and then less frequently, during Brown's first admission to the NRC from approximately September 2014 until Brown moved to the Lincoln Regional Center (LRC) in September 2015. Dr. Beltagui met with Brown, on a weekly basis, for the first eight weeks after Brown's second admission to the NRC in October 2016, and then on a monthly basis, until leaving employment at the NRC in July 2017. (Filing No. 45-4 at CM/ECF p. 2, ¶ 5.)

         54. Upon Brown's readmission to the NRC, Dr. Beltagui approved Brown's request to wear female undergarments and gender-neutral outerwear, but denied Brown's request to wear female clothing such as dresses, midriff, low-cut or see-through shirts or blouses, high heels, stockings and nylons, and make-up. (Filing No. 45-4 at CM/ECF p. 2, ¶ 6.)

         55. It is the opinion of Dr. Beltagui that it would be a safety and security risk for Brown to wear dresses, midriff, low-cut or see-through shirts or blouses, high heels, stockings and nylons, or make-up at the NRC, because the NRC is an all-male psychiatric hospital treating sex-offenders. It is the opinion of Dr. Beltagui that wearing such clothing would make Brown a potential target for sexual assault from other patients. (Filing No. 45-4 at CM/ECF p. 2, ¶ 7.)

         56. Dr. Beltagui never disregarded Brown's request for hormone therapy. (Filing No. 45-4 at CM/ECF p. 2, ¶ 8; Filing No. 53 at CM/ECF pp. 77-78, Response to Interrogatory No. 14.)

         57. On December 2, 2016, Dr. Beltagui submitted a written referral request for Brown to see a doctor in Omaha who specializes in transgender care and hormone therapy in Omaha for an evaluation. (Filing No. 45-4 at CM/ECF p. 2, ¶ 9; Filing No. 53 at CM/ECF pp. 77-78, Response to Interrogatory No. 14, p. 83.)

         58. On December 2, 2016, the referral request was denied and Dr. Beltagui advised Brown of this decision. (Filing No. 45-4 at CM/ECF p. 2, ¶ 10; Filing No. 53 at CM/ECF p. 83.)

         59. A few days later, Dr. Beltagui was advised Brown's referral was neither approved nor denied, but that his records from his previous providers, on the outside, prior to incarceration, were needed, before hormone therapy could be considered. Dr. Beltagui advised Brown of this decision and explained the initial denial had been a miscommunication. (Filing No. 45-4 at CM/ECF p. 3, ¶ 11.)

         60. Dr. Beltagui believes the initial denial and subsequent requirement for records prior to a decision on the referral was caused by confusion and was not intentional. (Filing No. 45-4 at CM/ECF p. 3, ¶ 12.)

         61. Brown's diagnosis was officially amended to include Gender Dysphoria at the Diagnostic Staff Meeting held on January 4, 2017. (Filing No. 45-4 at CM/ECF p. 3, ¶ 13.)

         62. According to the Diagnostic and Statistical Manual V, a Gender Dysphoria diagnosis involves a difference between one's experienced/expressed gender and assigned gender, and significant distress or problems functioning. It lasts at least six months and is shown by at least two of the following:

a. A marked incongruence between one's experienced/expressed gender and primary and/or secondary sex characteristics;
b. A strong desire to be rid of one's primary and/or secondary sex characteristics;
c. A strong desire for the primary and/or secondary sex characteristics of the other gender;
d. A strong desire to be of the other gender;
e. A strong desire to be treated as the other gender;
f. A strong conviction that one has the typical feelings and reactions of the other gender.

(Filing No. 45-4 at CM/ECF p. 3, ¶ 14.)

         63. It is the opinion of Dr. Beltagui that not every individual who carries the diagnosis of Gender Dysphoria is a candidate for hormone therapy. It was beyond the scope of Dr. Beltagui's practice to determine whether Brown was a candidate for hormone therapy. It is the opinion of Dr. Beltagui such a determination should be made by a doctor who specializes in transgender care and hormone therapy after an evaluation. (Filing No. 45-4 at CM/ECF p. 3, ¶ 15.)

         64. Dr. Beltagui discussed Brown's statements regarding contemplating self-harm in the form of penis mutilation. Dr. Beltagui assessed Brown for the risk of self-harm upon this discussion. Dr. Beltagui understood from his discussion with Brown that the self-harm statements were made out of frustration as opposed to true intent to self-harm. Dr. Beltagui determined Brown was not a risk for self-harm at that time. (Filing No. 45-4 at CM/ECF p. 4, ¶ 16.)

         65. Other than Brown's self-report, Dr. Beltagui was not aware of any information or medical report to show Brown took hormone pills prior to incarceration. (Filing No. 45-4 at CM/ECF p. 4, ¶ 17.)

         66. Brown never mentioned being transgendered or requiring hormone therapy to Dr. Beltagui during Brown's first admission to the NRC. (Filing No. 45-4 at CM/ECF p. 4, ¶ 18.)

         Linda ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.