RICHARD G. KOPF, District Judge.
This matter is before the court on the Defendants' Motion for Summary Judgment (
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.
After a review of the Second Amended Complaint (
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. (
6. Brown was a patient at the NRC from December 2013 through September 2015. (
7. Brown was a patient at the LRC from September 2015 until Brown's readmission to the NRC in October 2016. (
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. (
9. At all times relevant, Dawson was the DHHS Director of the Division of Behavioral Health. (
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. (
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. (
12. Dawson received a written complaint from Brown on November 17, 2016. (
13. Dawson received a written complaint from Brown dated November 28, 2016. (
14. Dawson provided Brown a written response dated December 15, 2016. (
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. (
16. Kroll has been employed by the NRC for approximately 41 years. (
17. Upon Brown's readmission to the NRC, Kroll's involvement with Brown was mainly through responding to grievances. (
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. (
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.
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.
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. (
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. (
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. (
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. (
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. (
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. (
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. (
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. (
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. (
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. (
31. Kroll never prevented Brown from advancing in treatment because Brown contacted the Ombudsman. (
32. Kroll does not care if Brown contacts the Ombudsman. (
33. Kroll believes Brown has the right to contact the Ombudsman. (
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. (
35. Kroll does not remember the date in which he was served with the lawsuit. (
36. Brown is not the first patient to sue Kroll. (
37. Kroll is not offended when a patient files a lawsuit against him. (
38. Kroll believes Brown has the right to file a lawsuit. (
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. (
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. (
41. Schumacher has been employed at the NRC since December 1995. (
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. (
43. At all times relevant, Schumacher was a Physician Assistant at the NRC. (
44. Schumacher does not recall being involved in the decision making regarding Brown's request for a private bathroom. (
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. (
46. Schumacher was not aware of Brown having hormone treatment before Brown was incarcerated. (
47. Schumacher does not recall seeing any documents that showed a physician had prescribed hormone treatment for Brown. (
48. Other than Brown's self-report, Schumacher was not aware of Brown taking hormone pills prior to being incarcerated. (
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. (
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. (
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. (
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. (
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. (
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. (
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. (
56. Dr. Beltagui never disregarded Brown's request for hormone therapy. (
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. (
58. On December 2, 2016, the referral request was denied and Dr. Beltagui advised Brown of this decision. (
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. (
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. (
61. Brown's diagnosis was officially amended to include Gender Dysphoria at the Diagnostic Staff Meeting held on January 4, 2017. (
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:
(
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. (
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 selfharm at that time. (
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. (
66. Brown never mentioned being transgendered or requiring hormone therapy to Dr. Beltagui during Brown's first admission to the NRC. (
67. Hansen is a Registered Nurse licensed to practice in the State of Nebraska. (
68. Hansen is the Nurse Supervisor of 3 West, one of the units on the Mainstream Treatment Program of the NRC. Hansen has been a Nurse Supervisor at the NRC for over 30 years. Hansen began supervision in the Sex Offender Treatment Program at the NRC in approximately 2007. (
69. Hansen does not personally determine the level assignment for any patient upon their admission to the NRC. When a patient is admitted to the NRC, the level assignment is determined by the full treatment team. (
70. Hansen finds each individual patient progresses in their own way. Hansen's job is to observe the behavior of the patients and instruct those under her supervision to observe the behavior of the patients. This behavior is then reported to the full treatment team to determine how the patient is progressing in the program. (
71. Hansen was not part of the decision making process regarding what clothing Brown would be allowed to wear at the NRC. (
72. Hansen never scored Brown's treatment plan. Hansen does not participate in the scoring of Brown's treatment plan. (
73. Hansen never prevented Brown from advancing in treatment because Brown contacted the Ombudsman. (
74. Hansen does not recall Brown contacting the Ombudsman's Office. (
75. Hansen believes Brown has the right to contact the Ombudsman's Office. (
76. Hansen does not care if Brown contacts the Ombudsman's Office. (
77. Hansen never prevented Brown from advancing in treatment because of this lawsuit. (
78. Hansen does not remember when she learned about this lawsuit or when she was served. (
79. Hansen believes Brown has the right to file a lawsuit. (
80. At all times relevant, Mastny was a Registered Nurse licensed to practice nursing in the State of Nebraska. (
81. Mastny has been employed at the NRC for almost 20 years. (
82. Mastny is currently a Unit Supervisor for the Motivational Unit at the NRC. Mastny previously was a Staff Registered Nurse, a License Practicing Nurse, and a Unit Supervisor on 3-East at the NRC. (
83. Mastny has not been involved in any of Brown's treatment, or any of the scoring of Brown's treatment, since Brown was readmitted to the NRC in October 2016. (
84. Mastny was not part of Brown's treatment team when Brown returned to the NRC.
85. Mastny was not involved in the decision to start Brown at Level One when Brown returned to the NRC. (
86. Mastny did not take part in any discussions regarding Brown wearing female clothing. It was not part of her job duties to have such discussions. (
87. Mastny never conspired to give Brown "negative" scores after Brown talked to the Ombudsman. (
88. Mastny never prevented Brown from advancing in treatment because Brown contacted the Ombudsman. (
89. Mastny was not aware Brown had contacted the Ombudsman upon returning to the NRC. (
90. Mastny believes Brown has the right to contact the Ombudsman. Mastny knows the number for the Ombudsman's office is posted in several locations in the NRC. (
91. Mastny does not care if Brown contacts the Ombudsman. (
92. Mastny never prevented Brown from advancing in treatment because Brown sued her. (
93. Mastny heard about the lawsuit when she received the documents in the mail on or about June 14, 2017. Mastny does not remember the exact date she received the documents. (
94. Mastny believes Brown has the right to file a lawsuit. (
95. At all times relevant, Strong was a Registered Nurse licensed to practice nursing in the State of Nebraska. (
96. Strong has been employed by the NRC as a Nurse Manager since December 20, 2010. (
97. Strong has not been involved in Brown's treatment since Brown was readmitted to the NRC in October 2016. (
98. It is not within Strong's authority to determine the treatment level for any patient upon their admission to the NRC. (
99. Strong has not interfered with Brown's advancement on the treatment scale. (
100. Strong has not refused to allow Brown to wear female clothing. It is not within Strong's authority to determine the clothing Brown is allowed to wear at the NRC. (
101. The only interaction Strong has had with Brown since November 1, 2016 was in August 2017 when Brown would not agree to allow her to administer Brown's medications. Strong agreed, the medications were administered by another nurse, and there was no problem. (
102. Strong has not "conspired" against Brown to give "negative scores" after Brown contacted the Ombudsman. (
103. Strong has not participated in Brown's scoring since Brown returned to the NRC. (
104. Strong never prevented Brown from advancing in treatment because Brown contacted the Ombudsman. (
105. Strong was not aware Brown had contacted the Ombudsman. (
106. Strong believes Brown has the right to contact the Ombudsman. (
107. Strong does not care if Brown contacts the Ombudsman. (
108. Strong never prevented Brown from advancing in treatment because Brown sued her. (
109. Strong does not recall specifically when she learned about this lawsuit. (
110. Strong believes Brown has the right to file a lawsuit. (
111. Dr. Laing has been a Licensed Psychologist in the State of Nebraska since 1984. (
112. Dr. Laing has been employed at the NRC for approximately 35 years. (
113. At all times relevant, Dr. Laing served as a Licensed Psychologist at the NRC. (
114. Dr. Laing is not a member of the NRC administration. Dr. Laing is a clinician and member of the NRC medical staff. (
115. Dr. Laing has not been involved in addressing Brown's transgender concerns. (
116. Dr. Laing was a co-facilitator in Brown's sex offender therapy group during Brown's first admission to the NRC from January 2014 to September 2015. The group met three times a week for approximately 90 minutes a session. During Brown's first admission, Dr. Laing was also a co-facilitator of a psychoeducational group addressing cognitive distortions. Brown participated in the group in July and August of 2014; the group met twice weekly for approximately 60 minutes a session. (
117. Brown did not identify transgender issues as a current concern to Dr. Laing during Brown's first admission to the NRC. During presentation of the autobiography assignment in sex offender group in May 2014, Brown reported past consideration of gender reassignment surgery but decided not to proceed with this when "[her] kids had kids" and described being "comfortable with who [she] [was]." (
118. Upon Brown's readmission to the NRC in October 2016, Dr. Laing was the assessing practitioner for an Admission Psychological Assessment. A primary purpose of the assessment was to assist the treatment team in developing Brown's initial NRC readmission treatment plan. Dr. Laing met with Brown for 75 minutes on November 1, 2016 and 55 minutes on November 2, 2016 as part of this assessment. The assessment reviewed the circumstances which led Brown to being readmitted to the NRC for sex offender treatment, including Brown's treatment priorities of managing anger and sexual boundaries with peers. (
119. During the assessment, Brown volunteered "doing transgendering" at the LRC during the time of engaging in sexual behavior with a peer. Brown volunteered filing "a civil lawsuit against LRC because they were denying [her] transgendered rights." Brown reported being approved to wear female undergarments with gender-neutral outerwear at the LRC. Brown reported beginning to dress up in mother's clothing at 8 or 9 and beginning to dress in women's clothing at age 16. Brown described taking girls' clothing to school in a bag, changing there, and then changing back to the original clothing before going home. Brown reported wearing "complete drag" after leaving school in the 11th grade. (
120. Brown reported going to clubs and bars and engaging in prostitution in drag. Brown reported planning to have gender reassignment surgery, but legal problems prevented following through with the surgery. Brown reported having electrolysis in 1989, taking estrogen in the past, and participating in therapy regarding gender identity and reassignment from 1997 to 2000 and again from 2002 to 2005. (
121. Dr. Laing found the information Brown provided during the assessment was inconsistent with information from other sources. Brown has repeatedly identified as homosexual to treatment providers, including upon readmission to the NRC. Brown's mother previously reported Brown's clothing in high school was distinctive for emulating Michael Jackson. In the course of presenting an autobiography in sex offender group in May 2014, Brown reported deciding not to proceed with gender reassignment surgery when "[her] kids had kids" and Brown stated being "comfortable with who [she] [was]." Brown has reported having multiple grandchildren. (
122. At the time of readmission, the general practice for the NRC was for patients returning from LRC to begin treatment at Level One. No consideration was given for changing this practice for Brown due to multiple sexual act outs, threats to staff, and self-reported physical aggression toward a peer while Brown was a patient at the LRC. (
123. Due to the inconsistency among Brown's self-reports and collateral information from other sources regarding sexual orientation and plans for addressing gender identity, Dr. Laing did not offer the diagnoses of GID or gender dysphoria for Brown. (
124. The purpose of Brown's treatment plan was to focus on maintaining sexual boundaries with peers and managing anger without aggression so that Brown could return to the LRC and progress through the program there. (
125. Dr. Laing never mentioned lawsuits to Brown in the context of Brown's treatment progression. (
126. Dr. Laing never addressed Brown's request for a private bathroom. (
127. Dr. Laing never prescribed any treatment plan for Brown regarding GID or gender dysphoria. (
128. Dr. Laing was not involved in the decision making process regarding whether Brown would be approved to wear feminine clothing or make-up while a patient at the NRC. (
129. Dr. Laing was not involved in the level scoring done in conjunction with Brown's treatment plan after Brown's readmission to the NRC in October 2016. (
130. Dr. Laing was not involved in the decision making process regarding whether Brown would be allowed to have a medical evaluation by a specialist for GID or gender dysphoria or estrogen therapy. (
131. Dr. Laing never prevented Brown from advancing in treatment because Brown contacted the Ombudsman. (
132. Dr. Laing was not aware Brown contacted the Ombudsman. (
133. Dr. Laing does not care if Brown contacts the Ombudsman. (
134. Dr. Laing believes Brown has the right to contact the Ombudsman. (
135. Dr. Laing never prevented Brown from advancing in treatment because Brown sued her. (
136. Dr. Laing learned of this lawsuit when she was served on June 16, 2017. (
137. Dr. Laing believes Brown has the right to file a lawsuit. (
138. At all times relevant, Dr. Mitchell was a Clinical Psychologist at the NRC. (
139. Dr. Mitchell has been employed at the NRC since September 1, 2009. (
140. There is no such position as "scoring coordinator" at the NRC. (
141. Dr. Mitchell is not part of the NRC administration. Dr. Mitchell is part of the NRC medical staff. (
142. Dr. Mitchell was one of the group facilitators for Brown's sex offender therapy group from October 2016 through July 1, 2017. (
143. Dr. Mitchell and the sex offender therapy group would discuss Brown's filing of lawsuits in a therapeutic context. (
144. Dr. Mitchell does not recall ever discussing scoring with Brown. (
145. Dr. Mitchell had no part in determining whether Brown was allowed to dress as a women at the NRC. Dr. Mitchell was not part of Brown's treatment team. (
146. Dr. Mitchell never prevented Brown from advancing in treatment because Brown contacted the Ombudsman. (
147. Dr. Mitchell believes it is Brown's right to contact the Ombudsman. (
148. Dr. Mitchell does not care if Brown contacts the Ombudsman. (
149. Dr. Mitchell never prevented Brown from advancing in treatment because Brown filed a lawsuit against him. (
150. Dr. Mitchell does not remember the exact date he received the lawsuit. (
151. Dr. Mitchell believes Brown has the right to file a lawsuit. (
152. Lueshen has been employed at the NRC since September of 1986. (
153. 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. (
154. Lueshen is not part of the NRC administration. Lueshen is a clinician and part of the NRC psychology staff. (
155. Lueshen was not part of the decision making process as to whether Brown would be allowed to wear female clothing at the NRC. (
156. Lueshen never prevented Brown from advancing in treatment because Brown contacted the Ombudsman. (
157. Lueshen was not aware Brown claimed to have contacted the Ombudsman until she received the lawsuit. (
158. Lueshen believes Brown has the right to contact the Ombudsman. (
159. Lueshen does not care if Brown contacts the Ombudsman. (
160. Lueshen never prevented Brown from advancing in treatment because Brown sued her. (
161. Lueshen does not specifically recall when she learned about the lawsuit, or when she was served with the lawsuit. (
162. Lueshen believes Brown has the right to file a lawsuit. (
163. Crist was employed at the NRC from July 1999 to December 2001. Crist has been employed with the NRC since December 2012. (
164. At all times relevant, Crist was employed as a Licensed Registered Nurse at the NRC. (
165. Crist never prevented Brown from advancing in treatment because Brown contacted the Ombudsman. (
166. Crist was not aware Brown contacted the Ombudsman. (
167. Crist does not care if Brown contacted the Ombudsman. (
168. Crist believes Brown has the right to contact the Ombudsman. (
169. Crist never prevented Brown from advancing in treatment because Brown sued her. (
170. Crist does not remember when she first learned about the lawsuit. (
171. Crist was served with the lawsuit sometime in June of 2016. (
172. It does not bother Crist that Brown filed a lawsuit. (
173. Crist believes Brown has the right to file a lawsuit. (
Brown alleges that defendants Kroll, Hansen, Mastny, Strong, Dr. Laing, Dr. Mitchell, Lueshen, and Crist made certain defamatory, harassing, or belittling statements to Brown and/or told her she would not progress in treatment to the LRC if she continued "exercising female characteristics" or voicing her transgender rights. These defendants deny making such statements. Resolution of whether these statements were in fact made, however, is unnecessary, because the statements, taken as true, do not create a genuine issue of disputed material fact with respect to any of the constitutional claims before the court on summary judgment.
Summary judgment should be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue. Schilf v. Eli Lilly & Co., 687 F.3d 947, 949 (8th Cir. 2012). In passing upon a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion. Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir. 1997).
In order to withstand a motion for summary judgment, the nonmoving party must substantiate allegations with "`sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy.' Moody v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). "A mere scintilla of evidence is insufficient to avoid summary judgment." Id. Essentially, the test is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
A party opposing summary judgment "may not rest upon the mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial, and must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Ingrassia v. Schafer, 825 F.3d 891, 896 (8th Cir. 2016) (quoting Anderson, 477 U.S. at 256-57 (quotations omitted); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-60 (1970).
Defendants argue that they are entitled to summary judgment because they are immune from suit in their individual capacities under the doctrine of qualified immunity. "Qualified immunity shields government officials from liability for civil damages and the burdens of litigation `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" McKenney v. Harrison, 635 F.3d 354, 358 (8th Cir. 2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "Stated another way, qualified immunity shields a defendant from suit if he or she could have reasonably believed his or her conduct to be lawful in light of clearly established law and the information that the defendant possessed." Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir. 2000) (internal quotation and citation omitted). "The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Id.
Qualified immunity requires a two-part inquiry: (1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant's alleged misconduct. Nance v. Sammis, 586 F.3d 604, 609 (8th Cir. 2009). If no reasonable fact-finder could answer yes to both of these questions, the official is entitled to qualified immunity. Id. "Courts may exercise their discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first." Akins v. Epperly, 588 F.3d 1178, 1183 (8th Cir. 2009).
Accordingly, in reviewing this motion, the court will first examine whether the facts as alleged by Brown reasonably show that the individually-named defendants have violated Brown's constitutional rights. If the facts do not show a violation, the court need not proceed further with the qualified immunity analysis.
Brown alleges that defendants Dr. Beltagui and Schumacher were deliberately indifferent to her serious medical need (GID) by denying her a medical evaluation by a specialist and estrogen therapy.
Where a civilly-committed patient's Fourteenth Amendment claim is for constitutionally deficient medical care, the Eighth Circuit applies the deliberate indifference standard from the Eighth Amendment. Mead v. Palmer, 794 F.3d 932, 936 (8th Cir. 2015) (quotation marks and citation omitted); Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir. 2004) (recognizing that Fourteenth Amendment applied to involuntarily committed patient's § 1983 claims, but applying Eighth Amendment standards because patient's "confinement is subject to the same safety and security concerns as that of a prisoner"). Therefore, while Brown is not a prisoner, Eighth Amendment standards apply to her claim.
In order to prevail on this claim, Brown must demonstrate that (1) she suffered from an objectively serious medical need, and (2) the defendants knew of, but deliberately disregarded, that need. Saylor v. Nebraska, 812 F.3d 637, 644 (8th Cir. 2016) (as amended Mar. 4, 2016). "A medical condition is `objectively serious' if the prisoner was diagnosed by a doctor or it is so obvious that a lay person would recognize the medical need." Id. "The subjective prong of deliberate indifference is an extremely high standard that requires a mental state of more . . . than gross negligence. It requires a mental state akin to criminal recklessness." Id. (internal quotation marks and citations omitted).
The evidence demonstrates that it was beyond the scope of Dr. Beltagui's practice to determine whether Brown was a candidate for hormone therapy. (
The referral request was handled as follows:
(
This evidence demonstrates that Dr. Beltagui did not disregard Brown's medical needs or deny treatment for her gender non-conformity or gender dysphoria. To the contrary, even before Brown was diagnosed with gender dysphoria and despite no indication Brown had taken hormones in the past, Dr. Beltagui requested that Brown be referred to a specialist for the purpose of determining whether she was a candidate for hormone treatment. The referral request was ultimately denied, but not by Dr. Beltagui.
Similarly, there is no evidence that Schumacher, a physician assistant, denied Brown a medical evaluation by a specialist and estrogen therapy. Schumacher had no documentation indicating that Brown had received or been prescribed hormone treatment before incarceration. (
Brown claims that defendants Kroll, Hansen, Mastny, Strong, Dr. Laing, Dr. Mitchell, Lueshen, and Crist have prevented her from advancing in her treatment program in retaliation for Brown filing lawsuits and contacting the Ombudsman regarding the exercise of her "transgender rights." (
To establish a First Amendment retaliation claim under 42 U.S.C. § 1983, the plaintiff must show (1) she engaged in protected activity; (2) the government official took adverse action against her that would chill a person of ordinary firmness from continuing in the activity, and (3) the adverse action was motivated at least in part by the exercise of the protected activity. Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014); Revels, 382 F.3d at 876; Naucke v. City of Park Hills, 284 F.3d 923, 927-28 (8th Cir. 2002). The retaliatory conduct itself need not be a constitutional violation; the violation is acting in retaliation for the exercise of a constitutionally protected right. Spencer v. Jackson Cnty., 738 F.3d 907, 911 (8th Cir. 2013). Further, "[t]o prevail in an action for First Amendment retaliation, [a plaintiff] must show a causal connection between [the defendant's] retaliatory animus and [the plaintiff's] subsequent injury." Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir. 2007) (citing Hartman v. Moore, 547 U.S. 250 (2006)).
Defendants Kroll, Hansen, Mastny, Strong, Dr. Laing, Dr. Mitchell, Lueshen, and Crist do not dispute that filing a lawsuit or contacting the Ombudsman constitutes engagement in an activity protected under the First Amendment. It is well established that the right to file a legal action is protected under the First Amendment. Spencer, 738 F.3d at 911. The law is also settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for speaking out. Peterson, 754 F.3d at 602. These defendants do dispute, however, that Brown can prove the other two essential elements of her retaliation claims.
There is no evidence, beyond Brown's own allegations, that the defendants were motivated to take adverse action based on Brown filing lawsuits and contacting the Ombudsman regarding the exercise of her "transgender rights." See id. (under the third prong of the First Amendment retaliation claim test, a plaintiff must show that the retaliatory motive was a "substantial factor" or "but-for cause" of the adverse action; in other words, a plaintiff must show he or she was singled out because of exercise of constitutional rights). The defendants presented evidence, which Brown has not properly disputed, that the defendants knew Brown had a right to file lawsuits and to contact the Ombudsman and did not care whether Brown exercised those rights. There is also no evidence that any action by the defendants prevented Brown from exercising her First Amendment rights. See Garcia v. City of Trenton, 348 F.3d 726, 728-29 (8th Cir. 2003). Indeed, Brown has continued to exercise her First Amendment rights by filing complaints, grievances, and/or lawsuits. See, e.g., Brown v. Kroll, 8:17CV0294 (D. Neb.).
Brown has cited no evidence to support her argument that her placement at treatment Level One upon her return to the NRC was in retaliation for filing lawsuits or contacting the Ombudsman. Rather, the evidence establishes that, when a patient is readmitted to the NRC from the LRC, the general practice is for patients to begin treatment at Level One. (
Brown bases much of her retaliation claim on allegations that several of the defendants told her that she would not progress in treatment if she continued to speak out about her transgender rights or continued to exercise "female characteristics." The defendants dispute making these comments. Regardless, even if these comments are taken as true, they do not establish that the defendants in fact prevented Brown from progressing in treatment in retaliation for her exercising her transgender rights.
The defendants have presented affidavit evidence, discussed below, demonstrating that they did not participate in Brown's treatment decisions or treatment plan scoring and/or did not prevent Brown from progressing in treatment in retaliation for Brown exercising her First Amendment rights:
Upon Brown's readmission to the NRC, Kroll's involvement with Brown was mainly through responding to grievances. (
Hansen does not individually determine the level assignment for any patient upon their admission to the NRC. (
After Brown's readmission to the NRC, Mastny was not involved in the decision to start Brown at Level One, was not involved in any of Brown's treatment or scoring of Brown's treatment, was not part of Brown's treatment team, and did not conspire to give Brown "negative" scores after Brown talked to the Ombudsman. (
After Brown's readmission to the NRC, Strong was not involved in Brown's treatment, did not participate in Brown's treatment scoring, did not conspire against Brown to give her "negative scores," and did not interfere with Brown's advancement on the treatment scale. (
Dr. Laing assisted the treatment team in developing Brown's initial NRC readmission treatment plan, including starting Brown's treatment at Level One based on the NRC's general practice and on Brown's multiple sexual act outs, threats to staff, and self-reported physical aggression toward a peer while a patient at the LRC. (
Dr. Mitchell was not part of Brown's treatment team and has not prevented Brown from advancing in treatment. (
Lueshen is not part of the NRC administration. (
Crist never prevented Brown from advancing in treatment because Brown contacted the Ombudsman or filed this lawsuit. (
Brown has failed to properly dispute this evidence.
To survive summary judgment on her retaliation claim, Brown must present evidence of a causal connection between constitutionally protected activity and an adverse action. There is nothing to show any action of any of the defendants was at all motivated by Brown's engagement in an activity protected under the First Amendment. Brown simply presumes retaliation based on nothing more than conclusory statements. There is no evidence any of the defendants treated Brown any differently than any other NRC patient due to Brown's exercise of constitutional rights.
Last, Brown claims that all the defendants violated the Equal Protection Clause's prohibition against sex-based discrimination when they treated her unfavorably because of her gender non-conformity. Brown's equal protection claims focus on the denial of her request for certain female clothing and items, disparate treatment progression, and the denial of her request for a private bathroom.
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The purpose of the Equal Protection Clause "is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination." Engquist v. Or. Dep't of Agric., 553 U.S. 591, 611 (2008) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). Proof that discriminatory intent was a motivating factor is required to show a violation of the Equal Protection Clause. Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977).
An equal protection claim may be established in two ways. The first requires a plaintiff to "show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Washington v. Davis, 426 U.S. 229, 239-40 (1976). If the claims do not involve a suspect classification, a plaintiff can establish an equal protection "class of one" claim by alleging that she "has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Olech, 528 U.S. at 564; see also Flowers v. City of Minneapolis, 558 F.3d 794, 798 (8th Cir. 2009). To prevail under this theory, a plaintiff must show that (1) he or she is a member of an identifiable class; (2) he or she was intentionally treated differently from others similarly situated; and (3) there is no rational basis for the difference in treatment. Olech, 528 U.S. at 564.
The Supreme Court has not decided whether transgender individuals constitute a protected or "suspect class." See Campbell v. Bruce, No. 17-CV-775-JDP, 2017 WL 6334221, at *3 (W.D. Wis. Dec. 1, 2017) ("Neither the Seventh Circuit nor the Supreme Court has determined whether transgender individuals constitute a protected class."); Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep't of Educ., 208 F.Supp.3d 850, 872 (S.D. Ohio 2016) ("The Supreme Court has not decided whether transgender status is a quasi-suspect class under the Equal Protection Clause."); Denegal v. Farrell, No. 1:15-cv-1251, 2016 WL 3648956, at *7 (E.D. Cal. July 8, 2016) (Findings and Recommendations of Magistrate Judge adopted on Sept. 9, 2016) ("The level of scrutiny applicable to classifications based on transgender status has not been determined by the United States Supreme Court," and "[c]ourts in this circuit have reached differing conclusions as to the level of scrutiny to be applied.").
This case, however, does not require the court to reach the question of whether transgender status is per se entitled to heightened scrutiny. No matter what level of scrutiny applies, the defendants' treatment of Brown must be balanced against penological or institutional interests like safety and protection from violence. See Fegans v. Norris, 537 F.3d 897, 906 (8th Cir. 2008) (inmate's equal protection claim failed when prison had valid penological interests of safety and security for differing hair-length rules for men and women); Tates v. Blanas, No. S-00-2539, 2003 WL 23864868, at *10 (E.D. Cal. Mar. 11, 2003) ("With regard to [transsexual detainee's request for a] bra, the possibility that it could be misused as a weapon or noose must be balanced against any medical or psychological harm to him resulting from denial of a bra"; defendants may not "apply a categorical rule . . . that denies an inmate a bra simply because he is a transgender or is housed in a men's ward").
Upon Brown's readmission to the NRC, Brown was approved to wear female undergarments and gender neutral outerwear, but her 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 was denied. (
The evidence demonstrates that the denial of certain female clothing and items was based on the NRC's interest in ensuring patients' safety and protection from violence. The NRC is a mental health hospital treating patients who have difficulty managing sexually deviant thoughts and ideas. (
The NRC's institutional-wide interest in safety is demonstrated by the fact that NRC employees are not allowed to wear shorts, skorts, spandex pants, leggings, spaghetti straps, tank tops, or clothing that is excessively tight, seethrough, or exposes midriff or cleavage. (
Thus, the undisputed evidence establishes that the NRC had a rational, non-discriminatory basis for regulating resident attire and denying Brown's request for certain feminine clothing and items.
Brown also claims disparate treatment based on the defendants' alleged favoritism toward other patients with respect to treatment classification and progression. Brown complains that while she was classified at treatment Level One when she was transferred from the LRC to the NRC, two other patients who were forced to transfer to NRC started at Levels 2 and 3, despite the fact that one of these patients hit an LRC staff member and the other threatened an LRC staff member's family. (
"[C]lass-of-one" equal protection claims may not apply to state action that involves "`discretionary decision making based on a vast array of subjective, individualized assessments . . . because treating like individuals differently is an accepted consequence of the discretion granted.' Robbins v. Becker, 794 F.3d 988, 995 (8th Cir. 2015) (quoting Engquist v. Or. Dep't of Agric., 553 U.S. 591, 602-04 (2008)). Here, the evidence establishes that the defendants' treatment and classification decisions regarding Brown were discretionary, and therefore not subject to a class-of-one equal protection claim. As previously stated, Brown was placed at treatment Level One upon return to the NRC because it was the general practice of the NRC and no consideration was given for changing this practice as a result of Brown's multiple sexual act outs, threats to staff, and self-reported physical aggression toward a peer while a patient at the LRC. (
Brown also complains that her equal protection rights were violated when she was denied a private bathroom. Brown has failed to set forth any meaningful and competent facts to suggest that the denial of a private bathroom was in discrimination of Brown's gender non-conformity and was done to deprive Brown of equal protection. Rather, the evidence establishes that the NRC approves a patient for a private bathroom only when the patient has a physical need for a private bathroom. (
With respect to defendant Dawson, the DHHS Director of the Division of Behavioral Health, there is no evidence that she had any personal involvement in the decisions regarding Brown's requests for female clothing and a private bathroom. (
Accordingly, all the defendants are entitled to summary judgment on Brown's equal protection claim.
The court finds that Brown's claims against each defendant fail as a matter of law. "If the court finds no constitutional violation occurred, the analysis ends and the issue of qualified immunity is not addressed. . . . This is not to say, however, the defendant official is entitled to qualified immunity. Rather, if no constitutional violation occurred, plaintiff's claim fails as a matter of law because plaintiff did not prove an essential element of the § 1983 claim." Ambrose v. Young, 474 F.3d 1070, 1077 n.3 (8th Cir. 2007) (citations omitted). Alternatively, because there was no constitutional violation, each defendant is entitled to qualified immunity. See Payne v. Britten, 749 F.3d 697, 707 (8th Cir. 2014) ("For example, a district court could begin and end with the first question, granting qualified immunity because there was no constitutional violation.").
The defendants have also filed a Motion to Strike (
IT IS THEREFORE ORDERED that:
1. Defendants' Motion for Summary Judgment (
2. Defendants' Motion to Strike (
3. A separate judgment will be entered.
