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
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.
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. Each defendant whose motion to
dismiss is addressed in this memorandum and order provided,
at some point, respite care or foster care for X.C.W. or
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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
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).
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.
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).
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.
Standing/Real Party in Interest
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. 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.
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.
Wang Anderson has lost whatever standing she once might have
had to prosecute X.C.W.'s claims,  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).
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.
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.
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
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. 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 ...