Jones v. McNeese
| Decision Date | 05 July 2012 |
| Docket Number | No. 4:09CV3264.,4:09CV3264. |
| Citation | 883 F.Supp.2d 897 |
| Parties | Bernard JONES, Alcohol and Drug Counseling Services, LLC, Healing Circle Recovery Community, Inc., Plaintiffs, v. Dr. Rick McNEESE, Nebraska Department of Correctional Services, Assistant Administrator of Behavioral Health–Substance Abuse, Individually; Defendant. |
| Court | U.S. District Court — District of Nebraska |
OPINION TEXT STARTS HERE
Joy A. Shiffermiller, Shiffermiller Law Firm, Lincoln, NE, for Plaintiffs.
Ryan C. Gilbride, Attorney General's Office, Lincoln, NE, for Defendant.
This matter is before the court on remand from the United States Court of Appeals for the Eighth Circuit (“Eighth Circuit”), Filing No. 78, Eighth Circuit Opinion (“Opinion”). The Eighth Circuit asks “for a more detailed consideration and explanation of the validity, or not, of the defendant's claim to qualified immunity.” 1Id., Opinion at 8. Further, it asks that the court address the issue of “whether each plaintiff has standing to assert each distinct claim under section 1983.” 2Id. at 7 n. 2.
This is an action for race discrimination and denial of due process in connection with certain actions taken by Richard McNeese, Ph. D. (“Dr. McNeese”), then employed as Assistant Administrator of Behavioral Health–Substance Abuse at the Nebraska Department of Correctional Services (“Department of Corrections”). Dr. McNeese allegedly removed plaintiff Bernard Jones and the businesses that he owned and operated, plaintiffs Alcohol and Drug Counseling Services, LLC (“ADCS”), and Healing Circle Recovery Community, Inc. (“Healing Circle”), from a list of providers that had been approved to provide parolees and probationers with substance abuse counseling services paid through vouchers issued by either the Nebraska Department of Corrections or the Nebraska judicial system.
In his motion for summary judgment, Dr. McNeese argued: 1) that the plaintiff's businesses, ADCS and Healing Circle, were not named in the complaint and were not proper parties to the case under the federal rules; 2) that Jones could not establish a claim under 42 U.S.C. § 1981 because he failed to establish discriminatory intent and failed to establish that Jones had engaged in a protected activity; 3) that Jones could not establish a claim for an equal protection violation or a deprivation of liberty without due process under § 1983, because he “[had] failed to establish conduct that somehow deprived him of rights, privileges or immunities secured by the Constitution;” and 4) Dr. McNeese was immune from suit and from an award of damages under the doctrine of qualified immunity. Filing No. 58, Defendant's Brief at 15–26, 30–33. In compliance with the local rule requiring counsel to list uncontroverted facts in support of a motion for summary judgment, McNeese set out 65 numbered paragraphs of purportedly uncontroverted facts. Id. at 2–14. McNeese also submitted depositions, affidavits, and exhibits. Filing No. 59 & Filing No. 60, Indices of Evid., Exs. 1–34.
In response, the plaintiffs controverted virtually all of the defendant's material contentions. Filing No. 61, Plaintiffs' Brief at 5–17. The plaintiffs argued that Dr. McNeese was not entitled to judgment as a matter of law because there were genuine issues of material fact on issues determinative of the claims. Id. at 18. The plaintiffs submitted competing deposition testimony, documents and answers to interrogatories in support of their position. See Filing Nos. 62 & 63, Exs. 1–2. Subsequent to the filing of the motion for summary judgment, the parties attended a pretrial conference, resulting in a pretrial order that supersedes the pleadings and establishes the controverted issues for trial.3 Filing No. 70, Pretrial Order.
The evidence submitted in connection with the motion for summary judgment shows that at the time of the events at issue, Dr. McNeese was the administrator of substance abuse treatment at the Department of Corrections. Filing No. 60, Index of Evid., Ex. 24, Affidavit of Dr. Rick McNeese (“Dr. McNeese Aff.”) at 1. Dr. McNeese's wife owns First Step Recovery, Inc. (“First Step”), and First Step Wellness Services, Inc., a nonprofit corporation. Filing No. 63, Index of Evid., Defendant's Answers to Interrogatories at 1. In 2007, in a publication connected to his college alma mater, Dr. McNeese indicated that he was President and Clinical Director of First Step. Filing No. 64, Index of Evid., Declaration of Joy Shiffermiller (“Shiffermiller Decl.”), Ex. 2, Deposition of Dr. Richard McNeese (“Dr. McNeese Dep.”) at 63 (Doc # 64–1, Page ID # 1003). First Step had contracts with the State of Nebraska to provide substance abuse treatment services. Id. at 65 (Doc # 64–1 Page ID # 1005). Dr. McNeese acknowledged that he worked at First Step as a consulting psychologist while he was working at the Department of Corrections. Id. at 57 (Doc # 64–1, Pg ID # 997).
Jones was employed by the Department of Corrections from 1991 to 2007 as a substance abuse counselor. Filing No. 60, Index of Evid., Ex. 25, Deposition of Bernard Jones (“Jones Dep.”) at 46–47. The evidence shows that while employed at the Department of Corrections, he met or exceeded expectations. Filing No. 62, Index of Evid., Shiffermiller Decl., Ex. 53, Personnel File Excerpts at 6 (Doc # 62–2, Page ID # 953). Jones testified that, as part of his substance abuse counselor training, he did a practicum or internship at First Step in 1998. Filing No. 60, Index of Evid., Ex. 25, Jones Dep. at 48. In 2000, Dr. McNeese hired Jones to work at Antlers, a residential substance abuse treatment program that had partnered with First Step in a bid for a federal contract. Id. at 52–54. Jones testified that Dr. McNeese told Jones in 1999 that Dr. McNeese wanted to hire Jones to attract more black clients. Id. at 54–55. He also testified that after Jones became employed at the Department of Correctional Services as a licensed substance abuse counselor, Dr. McNeese called Jones into his office and asked him to assist him in finding “people of color” to become substance abuse counselors. Id. at 241–42. Jones testified he perceived the comment to be racist. Id. at 243.
In 2005 or 2006, Jones approached Dr. McNeese about a treatment concept Jones was pursuing called the “Healing Circle Recovery Community.” Id. at 34. Jones intended to establish Healing Circle and work there while he was employed at the Department of Corrections. Id. at 87. Jones testified that Dr. McNeese told him he could not continue to develop the concept for the business while working at the Department of Corrections. Id. at 79. Jones stated that Dr. McNeese told him that he would be fired if he did so. Id. at 88. Dr. McNeese stated in an affidavit that he made no such statement to Jones. Filing No. 60, Ex. 24, Dr. McNeese Aff. at 2.
Jones also testified that he had gotten approval to perform outside work in the past, so he asked Larry Wayne, a supervisor, if there was anything he could do to proceed with his plans to establish Healing Circle. Filing No. 60, Index of Evid., Ex. 25, Jones Dep. at 88. Wayne told him to ask the Legal Department and the Legal Department later informed him that there would not be a conflict of interest if Jones worked at Healing Circle and at the Department of Corrections since Healing Circle would be a treatment center for women,and Jones only worked with men at the Department of Corrections. Id. at 88–89.
Dr. McNeese testified that two other Department of Corrections employees, Dr. Kamal and Ken Mausbach, who are not black, were allowed to work at both the Department of Corrections and at First Step. Filing No. 64, Ex. 2, Dr. McNeese Dep. at 57–59. Dr. Kamal, a psychiatrist, was a consulting psychiatrist at First Step while employed by the Department of Corrections. Id. at 57. Ken Mausbach, a mental health therapist, was a part-time contracting mental health therapist with First Step and was also on staff at the Department of Corrections. Id. at 58. Kamal is Pakistani, Mausbach is white. Id.
Healing Circle was incorporated in 2004, and accepted its first clients in 2008. Filing No. 60, Index of Evid., Ex. 25, Jones Dep. at 39 (Doc # 60–8, Page ID # 502–03). When Jones retired from the Department of Corrections in 2007, he set up ADCS, an outpatient treatment center for men. Id. at 103. Jones testified that he incorporated the businesses on his own, without the help of an attorney. Id. at 80.
ADCS received vouchers from the Department of Corrections as payment for addiction treatment services. Filing No. 64, Ex. 2, Dr. McNeese Dep. at 57 (Doc # 64–1, Pg ID # 997). ADCS got 99% of its funding from the Department of Corrections. Filing No. 60, Index of Evid., Ex. 25, Jones Dep. at 103 (Doc # 60–8, Page ID # 566). Jones testified Dr. McNeese was directly responsible for payments to the company. Id. at 103–04. Treatment for women at the Healing Circle was funded through either parole or probation. Id. at 105. While the Healing Circle was operative, Jones was generally paid through the voucher system. Id. at 96. Jones testified that being on the criminal justice provider list was an absolute necessity in order to provide treatment for any offenders paid with vouchers from either the Department of Corrections or the judicial system. Id. at 105.
Jones stated that he was allowed by the Department of Corrections to visit facilities and to give presentations to male inmates for ADCS and to women inmates for Healing Circle Recovery Community. Id. at 99. He testified he also solicited business by posting and distributing fliers. Id. at 99.
On June 29, Kris Parsons, a chemical dependency counselor supervisor, reported to Dr. McNeese that Jones had been at a community corrections facility to speak to inmates interested in attending intensive outpatient treatment at his treatment center. Filing No. 62, Ex. 1, Shiffermiller Decl., Ex. 67 at 3 (Doc # 62–3, Page ID 970). Dr....
To continue reading
Request your trial