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Narcisse v. Kubes

United States District Court, D. Nebraska

February 1, 2019



          Richard G. Kopf Senior United States District Judge

         Plaintiff, Jesse Narcisse, filed this case on January 16, 2019, and has been granted leave to proceed in forma pauperis. The court now conducts an initial review of Plaintiff's Complaint (Filing 1) to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).


         Plaintiff is an inpatient at the Norfolk Regional Center (“NRC”). For purposes of this initial review, the court will assume Plaintiff was involuntarily committed.

         Plaintiff alleges that on November 12, 2018, he was placed on “unit restriction” for 48 hours by Defendant Rhonda Wilson, RN, after a third-shift staff member, Defendant Lauran Kubes, reported that she saw Plaintiff crawling between stalls in a public bathroom on the preceding day. Plaintiff denies this report, and also claims the unit restriction should have been limited to 24 hours. Plaintiff feels he was placed on a 48-hour restriction because of his race and sexual orientation. (Filing 1, pp. 4, 8) Plaintiff filed a “step 1” grievance with Defendant Julie Redwing, RN (NRC director of nursing), who responded on November 19, 2018, that the matter was being investigated. (Filing 1, pp. 10-11)

         Plaintiff alleges that on November 13, 2018, Defendant Don Whittmore (NRC head of compliance) and Defendant Drew English (NRC compliance specialist) both told him that a video camera had captured him crawling under the toilet stall. Plaintiff alleges Whittmore became very irate because Plaintiff would not say who had told him about a camera being pointed at the bathroom. (Filing 1, p. 8) Plaintiff alleges that on November 20, 2018, he wrote to Defendant Spence Propel (Nebraska Department of Health and Human Services (“DHHS”) employee) concerning the incident, and that Propel later came to Plaintiff to ask who had told him that a video camera was pointed at the bathroom; Propel allegedly was upset that someone had told Plaintiff about the camera. (Filing 1, p. 8)

         Plaintiff alleges that Defendant John Reyolds is in charge of all regional centers for the State of Nebraska and, as such, is responsible for the video camera. Plaintiff also alleges that Defendant Kris Boe Simmons (NRC director) and Defendant Kathy Herian, RNBC (NRC unit supervisor on 3 East where the incident occurred) both knew or should have known that a video camera pointed at the bathroom violated Plaintiff's right to privacy. (Filing 1, p. 9)

         Plaintiff filed a second “step 1” grievance on December 2, 2018, complaining that he had not been told the outcome of the investigation into the matters raised in the first grievance, that no one had addressed the issue of the camera pointed at the bathroom, and that he had not been shown the video evidence. Defendant also requested a “step 2” grievance form. Defendant Redwing responded to this grievance on December 11, 2018, stating that a “step 2” grievance form was given to Plaintiff, and she responded again on December 17, 2018, stating that the result of the investigation was discussed with Plaintiff on December 14, 2018. (Filing 1, p. 12).

         Plaintiff filed a “step 2” grievance on December 13, 2018. Defendant Simmons responded on December 20, 2018, that:

At the time of initial grievance NRC was investigating the situation. That has been completed and findings have been reviewed with you twice I believe. Video evidence indicates you and a peer were in same stall in bathroom. To address additional concerns: the camera is not aimed into the bathroom, although peripheral can see. All stalls have doors for privacy. No. findings that staff tested you. Manual indicates patients are not to be in rooms together nor shall they be in same stall in bathroom. Manual clearly states UR is a minimum of 24 [hours]. Team determines length.

         (Filing 1, p. 14)

         The foregoing Defendants are sued in their individual and official capacities. The Norfolk Regional Center is also named as a Defendant. Plaintiff claims Defendants have violated his rights under the Fourth Amendment, and he seeks to recover compensatory and punitive damages. (Filing 1, p. 4)


         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. ยง 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 ...

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