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Brown v. Kroll

United States District Court, D. Nebraska

May 24, 2018

MEE MEE BROWN, Plaintiff,
v.
JOHN KROLL, Facility Operating Officer at Norfolk Regional Center, In Their Individual Capacities; BEVERLY LEUSHEN, Licensed Administrative Program Therapist, In Their Individual Capacities; KATHY HERRON, Licensed 3-East Unit Supervisor, In Their Individual Capacities; TABITHA WAGGONER, Provisionally Licensed Group Facilitator and Social Worker, In Their Individual Capacities; and RHONDA WILSON, Registered Nurse, In Their Individual Capacities; Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         This matter is before the court on the parties' cross-motions for summary judgment (Filing No. 11 & Filing No. 22).[1] For the reasons that follow, Defendants' Motion for Summary Judgment is granted, and Plaintiff's Motion for Summary Judgment is denied.

         I. BACKGROUND

         Plaintiff Mee Mee Brown (“Brown”) filed this action pursuant to 42 U.S.C. § 1983 against Defendants John Kroll (“Kroll”), Beverly Lueshen (“Lueshen”), [2]Kathy Herian (“Herian”)[3], Tabetha[4] Waggoner (“Waggoner”), and Rhonda Wilson (“Wilson”), who are employed at the Norfolk Regional Center (“NRC”) where Brown was committed for inpatient sex offender treatment.[5] After an initial review of the Complaint (Filing No. 1) and Brown's Motion to Amend Complaint (Filing No. 6), the court allowed the following claims to proceed:

a. An equal protection claim against Defendants Lueshen, Wilson, Herian, and Waggoner for directing other NRC patients not to associate with Brown because of her transgender identity.
b. A First Amendment retaliation claim against Defendant Herian for giving Brown negative treatment scores in response to Brown changing her name and wearing a bra as expressions of her transgender identity.
c. A First Amendment retaliation claim against Defendant Herian for giving Brown negative treatment scores in response to Brown's filing No. 8:16CV569.
d. A First Amendment retaliation claim against Defendant Waggoner for writing negative entries and low treatment scores in Brown's treatment plan and for forwarding negative untrue entries to the mental health board in response to Brown's filing No. 8:16CV569.[6]
e. A First Amendment retaliation claim against Defendant Kroll for directing staff to chart and monitor Brown's activities and for denying or ignoring purchase order requests in response to Brown's filing No. 8:16CV569.

(Filing No. 8 at CM/ECF pp. 15, 18.)[7]

         Shortly after Defendants filed their Answer (Filing No. 10), Defendants filed their Motion for Summary Judgment (Filing No. 11) on November 29, 2017. In support of their Motion, Defendants filed a Brief and an Index of Evidence. (Filing No. 12 & Filing No. 13.) On January 22, 2018, Brown filed her own Motion for Summary Judgment (Filing No. 22) and an Index of Evidence (Filing No. 23), which included as an exhibit her “Objection to Defendants' Motion for Summary Judgment” (Filing No. 23 at CM/ECF pp. 29-32).[8] Defendants filed a Brief in Opposition (Filing No. 25) to Brown's Motion for Summary Judgment.

         The party seeking the entry of summary judgment in its favor must set forth “a separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law.” NECivR 56.1(a)(1). This statement of facts “should consist of short numbered paragraphs, each containing pinpoint references to affidavits, pleadings, discovery responses, . . . or other materials that support the material facts stated in the paragraph.” NECivR 56.1(a)(2). If the non-moving party opposes the motion, that party must “include in its [opposing] brief a concise response to the moving party's statement of material facts.” NECivR 56.1(b)(1). Such response must “address each numbered paragraph in the movant's statement” of facts and must contain pinpoint citations to evidence supporting the opposition. Id. “Properly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response.” Id.; see also Fed. R. Civ. P. 56(e) (“A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.”).

         Defendants have submitted a statement of material facts in accordance with the court's Local Rules and properly authenticated evidence. Brown's “Objection to Defendants' Motion for Summary Judgment”-in addition to not being filed properly in accordance with the Local Rules-does not contain a concise response to each of Defendants' statements of material fact. See NECivR 56.1(b)(1). Furthermore, Brown's own Motion for Summary Judgment includes a statement of material facts, but does not contain “pinpoint references” to “materials that support the material facts stated in the paragraph[s].” See NECivR 56.1(a)(2). Nonetheless, Defendants have responded to each of Brown's statements of material fact in accordance with the court's Local Rule.

         Thus, while Defendants submitted a statement of material facts in accordance with the court's Local Rules, Brown has not. In light of this, the court adopts the following undisputed material facts, which are largely taken from Defendants' submission and have not been properly disputed pursuant to the Federal and Local Rules.

         II. RELEVANT UNDISPUTED MATERIAL FACTS

         1. The Nebraska Department of Health and Human Services (“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. 13-1 at CM/ECF p. 1, ¶ 5.)

         6. Brown was a patient at the NRC from December 2013 through September 2015. (Filing No. 13-1 at CM/ECF p. 2, ¶ 6.)

         7. Brown was a patient at the LRC from September 2015 until Brown's readmission to the NRC in October 2016. (Filing No. 13-1 at CM/ECF p. 2, ¶ 7.)

         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. 13-1 at CM/ECF p. 2, ¶ 8.)

         John Kroll

         9. 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. 13-1 at CM/ECF p. 1, ¶ 3.)

         10. Kroll has been employed by the NRC for approximately 41 years. (Filing No. 13-1 at CM/ECF p. 1, ¶ 4.)

         11. Kroll is not involved in any decisions regarding Brown's treatment level, treatment progression, or entries on Brown's treatment chart. (Filing No. 13-1 at CM/ECF p. 2, ¶ 9.)

         12. Kroll never directed NRC staff members to chart or monitor Brown's conversations or calls to outside media or family into Brown's treatment chart. (Filing No. 13-1 at CM/ECF p. 2, ¶ 10.)

         13. As a member of the NRC administration, Kroll denied one purchase order request submitted by Brown. Brown requested to purchase a silicone bra. The request was initially approved by the treatment team, but was denied by the NRC administration due to safety and security concerns. Since being readmitted to the NRC, Brown has been approved to wear female undergarments. The NRC administration determined the silicone bra request went beyond the approved undergarments. The NRC is a mental hospital which treats patients with histories of deviant sexual behaviors, who may also be criminal offenders. The NRC administration was concerned a silicone bra would draw more attention to Brown, and would place Brown's safety and security at risk from other patients. The NRC administration was also concerned the request would interfere with the treatment of other patients. (Filing No. 13-1 at CM/ECF pp. 2-3, ¶ 11.)

         14. Kroll did not deny any other purchase order requests made by Brown. To Kroll's knowledge, this was the only purchase order request made by Brown that was denied after readmission to the NRC. (Filing No. 13-1 at CM/ECF pp. 2-3, ¶ 11.)

         15. The NRC is required to account for the whereabouts and provide security for its patients. It is the policy of the NRC that all patients must be accounted for at all times. Patient counts are performed throughout the day. The nursing service staff conduct a check of each patient's whereabouts a minimum of once every 30 minutes and record this information. If patients are in their room during a check, they must be observed for life signs, such as breathing or body movement. If staff are unable to see life signs, they will knock on the patient's door and open it for further assessment. (Filing No. 13-1 at CM/ECF p. 3, ¶ 12.)

         16. Patients during the day are required to have their white room curtains open 2/3 of the way in their window unless they are engaging in privacy activities. If staff are conducting the roll call of patients and patients have their white curtain up on their room, staff will knock on the patient's door. If the patients say they are busy, staff give them five minutes. After the five minutes, staff knock on the door, and if the patients refuse to come to the door or take the white curtain down, staff advise the patients they must open the door in one minute. It is essential that staff be able to verify patients are in their room and what they are doing. (Filing No. 13-1 at CM/ECF p. 3, ¶ 13.)

         17. Patients are required to remove their white room curtains every night by 23:00 hours and place the curtains on their dresser, or the curtains will be removed by staff and placed on the patient's dresser. (Filing No. 13-1 at CM/ECF p. 3, ¶ 14.)

         18. Brown is not treated any differently regarding patient supervision and staff checks than any other patient. (Filing No. 13-1 at CM/ECF p. 3, ¶ 15.)

         19. Kroll does not remember the date in which he was served with the lawsuit in No. 8:16CV569. (Filing No. 13-1 at CM/ECF p. 4, ¶ 17.)

         20. Brown is not the first patient to sue Kroll. (Filing No. 13-1 at CM/ECF p. 4, ¶ 18.)

         21. Kroll is not offended when a patient files a lawsuit against him. (Filing No. 13-1 at CM/ECF p. 4, ¶ 19.)

         22. Kroll believes Brown has the right to file a lawsuit. (Filing No. 13-1 at CM/ECF p. 4, ¶ 20.)

         23. It is the policy of the NRC to investigate each written grievance submitted by a patient and meet with and/or respond to the patient within 12 calendar days from the date the grievance was received, unless additional time is necessary for adequate investigation. If more time is needed, the patient is notified in writing. Kroll reviewed the records of grievances submitted by Brown, and determined all grievances were responded to within 12 days. (Filing No. 13-1 at CM/ECF p. 4, ¶ 21.)

         Beverley Lueshen

         24. Lueshen has been employed at the NRC since September 1986. (Filing No. 13-2 at CM/ECF p. 1, ¶ 3.)

         25. Lueshen is a Licensed Mental Health Practitioner and Licensed Drug and Alcohol Counselor in the State of Nebraska. Lueshen has held these positions for approximately 19 years. (Filing No. 13-2 at CM/ECF p. 1, ¶ 4.)

         26. Lueshen never threatened other patients with “no contact” orders or “negative treatment scores” if they interacted with Brown. (Filing No. 13-2 at CM/ECF p. 1, ¶ 5.)

         27. Lueshen never issued a “no contact” order regarding Brown. (Filing No. 13-2 at CM/ECF p. 1, ¶ 6.)

         28. Lueshen would not have the authority to issue any such “no contact” order by herself. A “no contact” order involving an NRC patient would have to be made by the entire treatment team. (Filing No. 13-2 at CM/ECF p. 2, ¶ 7.)

         29. Lueshen is involved in the scoring of treatment plans for other patients. Her scoring is based upon that patient's behaviors. The purpose of treatment plan scoring is to address treatment issues with the patient being scored. Treatment plan scoring is not intended to prevent Brown from interacting with other patients, or to punish Brown. (Filing No. 13-2 at CM/ECF p. 2, ¶ 8.)

         30. Treatment plan scores are not intended to be “negative” toward the patient. Treatment plan scoring is a tool to determine a patient's treatment progress. Treatment plan scores are intended to assist the patient in determining what areas of treatment require more effort or work. (Filing No. 13-2 at CM/ECF p. 2, ¶ 9.)

         31. Lueshen never 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.” Lueshen would never say anything like that. (Filing No. 13-2 at CM/ECF p. 2, ¶ 10.)

         32. Lueshen never said to other patients, “I can see Mee Mee being in treatment for awhile [sic] because he likes to file lawsuits against staff, and his lawsuits are going nowhere, this ain't [sic] 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.” Lueshen would never say anything like that. (Filing No. 13-2 at CM/ECF p. 2, ¶ 11.)

         33. Lueshen never discussed Brown's lawsuits or treatment with other patients. (Filing No. ...


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