United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
matter is before the court on the parties' cross-motions
for summary judgment (Filing No. 11 & Filing
No. 22). For the reasons that follow,
Defendants' Motion for Summary Judgment is granted, and
Plaintiff's Motion for Summary Judgment is denied.
Mee Mee Brown (“Brown”) filed this action
pursuant to 42 U.S.C. § 1983 against Defendants John
Kroll (“Kroll”), Beverly Lueshen
(“Lueshen”), Kathy Herian
(“Herian”), Tabetha Waggoner
(“Waggoner”), and Rhonda Wilson
(“Wilson”), who are employed at the Norfolk
Regional Center (“NRC”) where Brown was committed
for inpatient sex offender treatment. 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
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.
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.)
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). Defendants filed a Brief in
Opposition (Filing No. 25) to Brown's Motion for
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
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.
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.
RELEVANT UNDISPUTED MATERIAL FACTS
Nebraska Department of Health and Human Services
(“DHHS”) administers the clinical programs and
services of the LRC and the NRC. Neb. Rev. Stat. §
DHHS supervises the LRC and the NRC. Neb. Rev. Stat. §
state hospital for the mentally ill established in Madison
County, Nebraska is known as the NRC. Neb. Rev. Stat. §
state hospital for the mentally ill established in Lancaster
County, Nebraska is known as the LRC. Neb. Rev. Stat. §
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,
Brown was a patient at the NRC from December 2013 through
September 2015. (Filing No. 13-1 at CM/ECF p. 2,
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.)
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.)
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.)
Kroll has been employed by the NRC for approximately 41
years. (Filing No. 13-1 at CM/ECF p. 1, ¶ 4.)
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.)
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.)
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.)
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,
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.)
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.)
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.)
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.)
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.)
Brown is not the first patient to sue Kroll. (Filing No.
13-1 at CM/ECF p. 4, ¶ 18.)
Kroll is not offended when a patient files a lawsuit against
him. (Filing No. 13-1 at CM/ECF p. 4, ¶ 19.)
Kroll believes Brown has the right to file a lawsuit.
(Filing No. 13-1 at CM/ECF p. 4, ¶ 20.)
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.)
Lueshen has been employed at the NRC since September 1986.
(Filing No. 13-2 at CM/ECF p. 1, ¶ 3.)
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.)
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.)
Lueshen never issued a “no contact” order
regarding Brown. (Filing No. 13-2 at CM/ECF p. 1,
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.)
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.)
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,
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.)
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,
Lueshen never discussed Brown's lawsuits or treatment
with other patients. (Filing No. ...