Anderson v. State

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge

         This matter is before the Court on the motions to dismiss filed by Sonia Derr (filing 242), Jennice Reid-Hansen and Tyler Hansen (filing 251), and Tina Anderson ("Anderson") (filing 266). The Court will grant each motion to dismiss. In addition, Reid-Hansen and Hansen filed a motion to strike (filing 410) the plaintiff's Index in Opposition (filing 387) to their motion to dismiss. The motion to strike will be denied as moot.

         I. BACKGROUND

         The plaintiff, Catherine Yang Wang Anderson ("Wang Anderson")^[1] 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. Each defendant whose motion to dismiss is addressed in this memorandum and order provided, at some point, respite care^[2] or foster care for X.C.W. or Y.C.W.

         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. But it was Y.C.W. who first drew the attention of authorities. According to Wang Anderson, Y.C.W. had an "inappropriate" personal relationship with a teacher at her high school because Y.C.W. was permitted and encouraged to confide in him about personal problems. Filing 154 at 24-28. According to the teacher, Y.C.W. told him she had sexual identity issues. Filing 154 at 35. Wang Anderson blames Y.C.W.'s friendship with her teacher for a "breakdown" in her own relationship with Y.C.W., who reported to school officials on October 8, 2013 that Wang Anderson had threatened her. Filing 154 at 28.

         Based on Y.C.W.'s report 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 with Derr. Filing 154 at 33-34. One of the sheriff's deputies observed that when Wang Anderson answered the door, she was wearing a rubber glove, and suspected that Wang Anderson might be mentally ill. Filing 154 at 29-31. Investigators from the Nebraska Department of Health and Human Services (NDHHS) went to Wang Anderson's residence that evening, and reported hazardous conditions. Filing 154 at 35. So, after X.C.W. went to school the next day, she was also placed in the temporary custody of the NDHHS. Filing 154 at 36. X.C.W. was also placed in foster care with Derr, and both girls were evaluated at Project Harmony. Filing 154 at 34, 37, 43.

         A 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 the NDHHS, then after a hearing, the juvenile court continued the NDHHS's temporary custody. Filing 154 at 45-46. During this period, on October 25, 2013, Anderson watched X.C.W. and Y.C.W. for Derr. Filing 268-1 at 2.^[3]

         Wang Anderson claims that both girls began to show signs of "mental, emotional and physical distress" that went unnoted and untreated. Filing 154 at 48-49. Both girls were diagnosed with mental health disorders; Wang Anderson claims the diagnoses were inaccurate. Filing 154 at 52. She also alleges, as a basis for liability, that the girls' mental health providers did not encourage them to communicate with her, and that both girls were told they had a right to refuse contact with her. Filing 154 at 53.

         X.C.W. was sent to a program for treatment of eating disorders. Filing 154 at 54. She was partially hospitalized-her time was split between the hospital and her foster home. Filing 154 at 54-55. On the suggestion of the girls' therapists, the NDHHS recommended to the juvenile court that all parental visitation be therapeutic, and the juvenile court agreed. Filing 154 at 57. But visitation between Wang Anderson and Y.C.W. was suspended. Filing 154 at 57. Wang Anderson alleges that Y.C.W.'s therapists approved "certain ways of life, behaviors or actions that were inappropriate, morally corruptive, harmful and detrimental. . . ." Filing 154 at 58.

         On January 28, 2014, the Douglas County Attorney petitioned the juvenile court to terminate Wang and Wang Anderson's parental rights. Filing 154 at 75. The juvenile court dismissed the termination petitions, but the girls were finally adjudicated as being juveniles within the meaning of Neb. Rev. Stat. § 43-247(3). Filing 154 at 81. And visitation was ordered. Filing 154 at 82.

         Meanwhile, X.C.W. had been held out of school during her eating disorder program. Filing 154 at 60. 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, with Reid-Hansen and Hansen. Filing 154 at 84. She continued treatment for her eating disorder at Children's Hospital in Omaha. Filing 154 at 83-84, 86.

         Sometimes, Reid-Hansen and Hansen were unable to take X.C.W. to Children's, so transportation was provided by Camelot Transportation. Filing 154 at 89. She rode with other passengers, some adult men. Filing 154 at 89. According to Wang Anderson, X.C.W. was "lured, sexually abused and sexually exploited" by another passenger. Filing 154 at 90. Or, to be more specific, a juvenile court filing indicates the two exchanged telephone numbers and texted one another, and X.C.W. sent him a nude picture of herself and expressed romantic feelings toward him. Filing 154 at 90.

         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. Wang Anderson alleges that at Remuda Ranch-and generally throughout X.C.W.'s mental health treatment- X.C.W.'s care providers didn't appropriately include X.C.W.'s family in her therapy. Filing 154 at 96. Eventually, visitation was cut off, allegedly in retaliation for Wang Anderson's efforts to contact X.C.W. and participate in her treatment. Filing 154 at 99.

         After discharge from Remuda Ranch, X.C.W. was returned to Reid-Hansen and Hansen. Filing 154 at 102. She was not, over Wang Anderson's objection, placed with relatives, despite a rule Wang Anderson says should have preferred such a placement. Filing 154 at 100. Then, X.C.W. was permitted to attend a Project Everlast meeting at which, Wang Anderson alleges, X.C.W. was again "lured and sexually assaulted or sexually exploited by an unknown adult male during and after the lunch hour." Filing 154 at 108-09. Wang Anderson says the incident wasn't discovered for a week, and alleges that X.C.W. was injured, but no treatment was provided, and no law enforcement investigation was initiated. Filing 154 at 109-10.

         Starting in June 2015, Wang Anderson was permitted to participate in family therapy, but she was excluded again after she "tried to address the pertinent and urgent topic of sex trafficking with X.C.W." Filing 154 at 113. Specifically, Wang Anderson alleges that she brought up "the seriousness and life-threatening consequences of being sexually abused and sexually trafficked with X.C.W. during a family therapy session, to try and educate and protect her." Filing 154 at 119. But the therapist asked Wang Anderson to leave, Wang Anderson alleges, instead of "assist[ing] Wang Anderson in discussing this important and germane topic with X.C.W." Filing 154 at 119. Then, Wang Anderson alleges, the therapist "departed from the therapeutic standard of care" by, allegedly, making "suggestions to X.C.W., regarding how to safely or legally engage in prostitution, shortly after X.C.W. had been sold for money." Filing 154 at 119.

         Meanwhile, X.C.W. was allowed by Reid-Hansen and Hansen-who lived in Blair, Nebraska-to work part-time in a Blair restaurant. Filing 154 at 115-16. Sometimes she walked to and from work. Filing 154 at 115. Wang Anderson complained to various authorities about instances in which X.C.W. was seen "scantily dressed, " and she alleges that various defendants ignored "the attire X.C.W. was permitted . . . to wear" by Reid-Hansen and Hansen. Filing 154 at 115-16. And according to Wang Anderson, X.C.W. arranged to be picked up by a man who, again, "sexually abused and exploited" her. Filing 154 at 115-16.

         Y.C.W. was apparently still in foster care-the complaint is not particularly clear about what was happening with Y.C.W. after mid-2014. Anderson represents that she provided respite care to Y.C.W. for 32 days between February and April, 2016. Filing 268-1 at 2. As for X.C.W., in May 2016, the juvenile court changed her permanency objective 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 Reid-Hansen and Hansen 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 at 124.

         Wang 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.

         Specifically, as to this set of defendants, Wang Anderson asserts these claims: negligence, § 1983, § 20-148, and negligent and intentional infliction of emotional distress. Filing 154 at 130, 137, 142-43, 148-49. Each defendant moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Filing 242; filing 251; filing 266.

         II. STANDARD OF REVIEW

         A complaint must set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This standard does not require detailed factual allegations, but it demands more than an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint need not contain detailed factual allegations, but must provide more than labels and conclusions; and a formulaic recitation of the elements of a cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For the purposes of a motion to dismiss a court must take all of the factual allegations in the complaint as true, but is not bound to accept as true a legal conclusion couched as a factual allegation. Id.

         A motion pursuant to Rule 12(b)(1) challenges whether the court has subject matter jurisdiction. The party asserting subject matter jurisdiction bears the burden of proof. Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010). Rule 12(b)(1) motions can be decided in three ways: at the pleading stage, like a Rule 12(b)(6) motion; on undisputed facts, like a summary judgment motion; and on disputed facts. Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008). It appears to the Court that the defendants are advancing a "facial attack" to subject matter jurisdiction, based on the pleadings. See Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015). Accordingly, the Court restricts itself to the pleadings and Wang Anderson receives the same protections as she would defending against a motion brought under Rule 12(b)(6). Hastings v. Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008).

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must also contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678. 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. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but has not shown-that the pleader is entitled to relief. Id. at 679.

         When deciding a motion to dismiss under Rule 12(b)(6), the Court is normally limited to considering the facts alleged in the complaint. If the Court considers matters outside the pleadings, the motion to dismiss must be converted to one for summary judgment. Fed.R.Civ.P. 12(d). However, the Court may consider exhibits attached to the complaint and materials that are necessarily embraced by the pleadings without converting the motion. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003). Documents necessarily embraced by the pleadings include those whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading. Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012).

         III. DISCUSSION

         The defendants generally advance the same arguments: they contend that Wang Anderson lacks standing to prosecute X.C.W.'s claims, that Wang Anderson has insufficiently alleged the state action necessary to support § 1983 claims, that § 20-148 does not provide an independent claim for relief, and that Wang Anderson's allegations are insufficient to state a claim for intentional or negligent infliction of emotional distress. See filing 242; filing 251; filing 267. In addition, Anderson argues that the complaint simply fails to describe her actions or inactions, filing 267 at 6-7, while Derr, Reid-Hansen and Hansen argue the complaint fails to allege facts establishing a tort duty owed to Wang Anderson, filing 242 at 2; filing 251 at 3.

         1. Standing/Real Party in Interest

         The first argument the Court must address is whether Wang Anderson has standing to represent X.C.W.'s interests-or, perhaps more precisely, whether Wang Anderson is the real party in interest.^[4] Fed.R.Civ.P. 17(a) provides that an action must be prosecuted in the name of the real party in interest. A minor or incompetent person may be represented by a guardian or next friend. See Rule 17(c). Wang Anderson purports to sue as X.C.W.'s next friend. Filing 154 at 2-3. A next friend is one who, in the absence of a guardian, acts for the benefit of an infant or incapacitated person. In re Adoption of Amea R., 807 N.W.2d 736, 741 (Neb. 2011).

         But a necessary condition for "next friend" standing is a showing by the proposed "next friend" that the real party in interest is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability. Whitmore v. Arkansas, 495 U.S. 149, 165 (1990); see Dafoe v. Dafoe, 69 N.W.2d 700, 705 (Neb. 1955). And in this case, it is expressly alleged that X.C.W. is not a minor, filing 154 at 2, and there has been no showing of mental incapacity or disability.^[5]

         Accordingly, Wang Anderson has lost whatever standing she once might have had to prosecute X.C.W.'s claims, ^[6] and cannot represent X.C.W.'s interests pursuant to Rule 17(c). See, e.g., Adm'r-Benefits for Exxon Mobil Sav. Plan v. Williams, 567 Fed.Appx. 97, 100-01 (3d Cir. 2014); Tate v. Cty. of Kern, No. 1:14-CV-159, 2014 WL 1819327, at *2 (E.D. Cal. May 7, 2014), report and recommendation adopted, No. 1:14-CV-159, 2014 WL 2506152 (E.D. Cal. May 29, 2014); Bender v. Metro. Nashville Bd. of Educ., No. 3:13-CV-470, 2013 WL 3777197, at *3 (M.D. Tenn. July 18, 2013); Bell v. Children's Protective Serv., No. 3:13-CV-104, 2013 WL 12113750, at *3 (S.D. Tex. Apr. 22, 2013), report and recommendation adopted sub nom. Bell v. Children's Protective Serv., No. 3:13-CV-104, 2013 WL 12113751 (S.D. Tex. May 31, 2013), aff'd sub nom. Bell v. Children's Protective Servs., 547 Fed.Appx. 453 (5th Cir. 2013); Broussard v. Waldron Sch. Dist., 866 F.Supp.2d 1042, 1046 (W.D. Ark. 2011); T.P.R. ex rel. Patterson-Rudolph v. Montgomery Pub. Sch., No. 2:08-CV-813, 2010 WL 2489180, at *2 (M.D. Ala. May 26, 2010), report and recommendation adopted, No. 2:08-CV-813, 2010 WL 2489054 (M.D. Ala. June 17, 2010); Unger v. Compton, No. 6:05-CV-186, 2006 WL 1737567, at *4 (E.D. Tex. June 23, 2006), aff'd, 249 Fed.Appx. 346 (5th Cir. 2007); Oliver v. Dallas Indep. Sch. Dist., No. 3:01-CV-2627, 2003 WL 22272304, at *3 (N.D. Tex. Sept. 29, 2003).

         Wang Anderson's argument against dismissing X.C.W.'s claims is threefold. First, Wang Anderson argues that X.C.W. was a minor when the case was filed. Filing 341 at 12. Perhaps so, but she's not one now. See Id. Second, she argues that she is the "only adult likely to seek vindication of Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009). There is some reason to question, in this case, whether Wang Anderson was an appropriate next friend for X.C.W. even when the case was filed. But in any event, X.C.W.'s minority ended before the operative amended complaint was filed-and when a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction. Rockwell Int'l Corp. v. United States, 549 U.S. 457, 473-74 (2007). X.C.W.'s constitutional rights." Filing 341 at 12. That argument isn't sufficient either, because it doesn't explain why X.C.W.-an adult-isn't likely to seek vindication of her own rights. Even as a general matter, the argument that if Wang Anderson doesn't have standing, no one would have standing, isn't a reason to find standing. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 420 (2013). But Wang Anderson isn't even arguing that much, and cannot explain why she should be conferred with standing simply because the person who actually does have standing doesn't seem likely to exercise it.

         And finally, Wang Anderson cites Garza v. Fliedner, No. 5-15-01067-CV, 2016 WL 7438756, at *5 n.3 (Tex. App. Dec. 27, 2016), review denied (Jan. 26, 2018), for the proposition that "there is not an automatic loss of jurisdiction over a minor's claims when that minor reaches the age of majority during the pendency of the litigation." Filing 341 at 13. True enough. See Rule 17(a)(3). But Garza doesn't help Wang Anderson at all, because it explains that

minors lack the capacity to bring a legal claim and claims belonging to them must be asserted through a legal guardian, a next friend, or guardian ad litem. But the authority of a next friend to act on a minor's behalf expires when the minor reaches the age of majority. . . . When the minor reaches majority, the suit does not abate but may proceed in the name of the minor at the minor's election. The record, however, should show the suit is prosecuted by the plaintiff herself, and it is proper to strike out the name of the next friend. An election can be inferred from conduct showing the former minor recognized the later prosecution of the action for the former minor's benefit, such as knowingly allowing the action to be carried on in the former minor's name or in the name of the next friend.

2016 WL 7438756, at *3. In other words, Garza is wholly consistent with the authority set forth above, and to the extent that decision is relevant here, it stands for the unremarkable proposition that if X.C.W.'s claims are to be prosecuted in this case, there must be something to show they are being prosecuted by X.C.W. And there isn't.

         In sum, an objection to Wang Anderson's standing has been pending for over 7 months now, see filing 221, which is certainly a "reasonable time" for X.C.W. "to ratify, join, or be substituted into the action." See Rule 17(a)(3); Kuelbs v. Hill, 615 F.3d 1037, 1042-43 (8th Cir. 2010). X.C.W. has not appeared, and nothing indicates she will. Accordingly, the Court will dismiss X.C.W.'s claims without prejudice.

         2. Negligence Claims

         To begin with, the way in which Wang Anderson's negligence claims are pled is a problem: the complaint lists 33 broadly stated charges against every defendant-making no effort to parse out which of the 69 defendants did what-then adds dozens more charges (many overlapping with the first set) against different sets of defendants.^[7] See filing 154 at 131-37. Rule 8(a) requires a pleading to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of ...