United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court on the motion to dismiss filed by
the Christian Heritage Children's Home (filing 280). That
motion will be granted in part and denied in part.
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 sued both in her own capacity and as
"next friend" of X.C.W. Filing 154 at 2.
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: she 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. Filing 154 at 33.
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 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
state. Filing 154 at 36.
and Y.C.W. were placed with the same foster parent. Filing
154 at 34, 37. That foster parent was allegedly employed by
Christian Heritage, a Nebraska nonprofit corporation that
provides foster care and social services. Filing 154 at 5,
17. Respite care for Y.C.W. was provided by another woman,
who may have been employed by Christian Heritage.
Filing 154 at 18.
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.
January 28, 2014, the Douglas County Attorney petitioned the
juvenile court to terminate 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.
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. 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 the 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 Anderson because of her 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 Christian Heritage, Wang Anderson asserts her
constitutional policy-or-custom claims, negligence, §
20-148, and negligent and intentional infliction of emotional
distress. Filing 154 at 126, 130, 142-43, 148-49. Christian
Heritage moves to dismiss her claims for lack of
subject-matter jurisdiction pursuant to Fed.R.Civ.P.
12(b)(1). Filing 280.
STANDARD OF REVIEW
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 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 ...