United States District Court, D. Nebraska
CATHERINE YANG WANG ANDERSON, Individually and on behalf of X.C.W. as the "Next Friend" of X.C.W., a minor, Plaintiff,
THE STATE OF NEBRASKA, et al., Defendants.
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
This matter is before the Court on the motion to dismiss
(filing 196) of the Papillion La Vista Community Schools.
That motion will be denied without prejudice.
plaintiff, Catherine Yang Wang Anderson (Wang Anderson) is
the mother of two girls, X.C.W. and Y.C.W. Filing 154 at 2.
Wang Anderson's husband, Bo Wang (Wang) is their father.
Filing 154 at 2. X.C.W. was a minor when this case was filed,
and Wang Anderson is suing both in her own capacity and as
"next friend" of X.C.W. Filing 154 at 2. Very
generally, Wang Anderson alleges that X.C.W. was unlawfully
made a ward of the State of Nebraska and held by the State
against her will. Filing 154 at 2.
was Y.C.W. who first drew the attention of authorities. After
Y.C.W. reported to officials at her high school-in the
Millard Public Schools, not Papillion La Vista-that she
didn't feel safe going home, sheriff's officers
removed Y.C.W. from Wang Anderson's residence and took
her to Project Harmony for a temporary foster placement.
Filing 154 at 33. After X.C.W. went to school the next
day-again, in Millard, not Papillion La Vista-she was also
placed in the temporary custody of the Nebraska Department of
Health and Human Services (DHHS). Filing 154 at 36. X.C.W.
and Y.C.W. were placed with the same foster parent, and both
girls were evaluated at Project Harmony. Filing 154 at 34,
juvenile proceeding was initiated in the Separate Juvenile
Court of Douglas County, Nebraska. Filing 154 at 44. The
petition alleged-Wang Anderson says wrongly-that X.C.W. and
Y.C.W. had been subjected to inappropriate discipline, not
provided with safe housing, deprived of proper parental care
and support, and that Wang Anderson had been seen acting in a
manner consistent with untreated mental health needs. Filing
154 at 44-45. An ex parte juvenile court order placed the
girls in the temporary custody of DHHS, then after a hearing,
the juvenile court continued DHHS's temporary custody.
Filing 154 at 45-46.
was sent to a program for treating eating disorders. Filing
154 at 54. But her condition had deteriorated and more
intensive treatment was recommended. Filing 154 at 68. She
was placed at the Laureate Psychiatric Clinic and Hospital in
Tulsa, Oklahoma. Filing 154 at 73. Eventually, X.C.W. was
discharged from Laureate and put into a new foster placement,
and she continued treatment for her eating disorder at
Children's Hospital in Omaha. Filing 154 at 83-84, 86.
Her new foster parents-Tyler Hansen and Jennice
Reid-Hansen-lived in Bellevue, Nebraska at the time, filing
154 at 84, and the Court infers that this was when X.C.W. was
enrolled in a Papillion La Vista school.
X.C.W.'s anorexia relapsed, and she was again
hospitalized. Filing 154 at 91-92. In November 2014, she was
placed at Remuda Ranch, a treatment facility in Arizona.
Filing 154 at 94. After discharge from Remuda Ranch, X.C.W.
was returned to her foster placement with Hansen and
Reid-Hansen, who moved to Blair, Nebraska, resulting in
X.C.W.'s transfer to the Blair School District in 2015.
Filing 154 at 102, 112-13.
2016, the juvenile court changed the permanency objective for
X.C.W. to independent living. Filing 154 at 121. She moved to
another foster home, then to an "independent living
arrangement, " then to a dormitory at the University of
Nebraska-Lincoln. Filing 154 at 121. But in December 2016,
she was returned to her foster home in Blair. Filing 154 at
123. After that, she was sent to another foster placement,
where she remained when this complaint was filed. Filing 154
Anderson asserts several federal and state-law claims against
sixty-nine different defendants, on behalf of herself and
X.C.W. Filing 154 at 1-2. She claims a number of federal
constitutional violations, including violation of their
rights to due process and familial association, unlawful
seizure, a deliberately indifferent failure to protect,
retaliation for constitutionally protected activity,
violation of Wang Anderson's First Amendment rights, and
discrimination against Wang and Wang Anderson because of
their Chinese origin. Filing 154 at 124-30, 137-47. She also
claims X.C.W. wasn't provided with accommodations
required by § 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794. Filing 154 at 147-48. And, she says, she
and X.C.W. were denied statutory rights arising under 42
U.S.C. §§ 621 et seq. & 670 et
seq. Filing 154 at 150-57. Finally, she asserts
state-law claims including negligence, negligent and
intentional infliction of emotional distress, and a civil
rights claim pursuant to Neb. Rev. Stat. § 20-148.
Filing 154 at 131-37, 148-50. Of those claims, six are
asserted against Papillion La Vista: §§ 1983 &
1985, negligence, § 504, § 20-148, and the
emotional distress claims. Filing 154 at 126, 130, 147-49.
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Id. While the Court must accept as true all
facts pleaded by the non-moving party and grant all
reasonable inferences from the pleadings in favor of the
non-moving party, Gallagher v. City of Clayton, 699
F.3d 1013, 1016 (8th Cir. 2012), a pleading that offers
labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do. Iqbal,
556 U.S. at 678.
La Vista moves to dismiss the state-law negligence and
emotional distress claims for failure to comply with the
presentment requirements of the Nebraska Political
Subdivisions Tort Claims Act, Neb. Rev. Stat. § 13-901
et seq. (PSTCA). Filing 197 at 1; seefiling
154 at 130, 148-49. Under Nebraska law, the filing or
presentment of a claim to the appropriate political
subdivision, while it is not a jurisdictional prerequisite,
is a condition precedent to commencement of a suit under the
PSTCA. Keller ...