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 and
motion to strike (filing 221) filed by Douglas County,
Nebraska and Chad Miller, Mark Gentile, Brenda Wheeler, and
Amy Schuchman (collectively, the "County
Defendants"). The Court will grant the motion to dismiss
in part and deny it in part, and will deny the motion to
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. Douglas
County is a political subdivision of the State of Nebraska.
Filing 154 at 3. Gentile was a lieutenant with the Douglas
County Sheriff's Office, and Wheeler and Miller were
sheriff's office deputies. Filing 154 at 6-7. Miller was
also the school resource officer at Millard West High School.
Filing 154 at 7. Schuchman was a deputy Douglas County
Attorney. Filing 154 at 19.
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, Millard West,
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.
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. Shortly after
that, Miller spoke to Y.C.W. about her report. Filing 154 at
28. Miller and another deputy went to Wang Anderson's
home and spoke with her, but didn't enter the home.
Filing 154 at 28-29. They didn't tell Wang Anderson about
Y.C.W.'s reported threat. Filing 154 at 29.
same day, Gentile and another officer went to Wang
Anderson's home to make contact with X.C.W., who was
home. Filing 154 at 29. Gentile spoke to X.C.W. privately,
and according to Wang Anderson, X.C.W. told Gentile that she
had heard no threat to Y.C.W., and speculated that Y.C.W.
might have made up the report. Filing 154 at 29. Gentile
specifically asked X.C.W. whether she felt unsafe with Wang
Anderson, and X.C.W. said she didn't. Filing 154 at 29.
Wang Anderson alleges that she reported concerns about
Y.C.W.'s friendship with her teacher to Gentile, but that
Gentile did not investigate those concerns. Filing 154 at 30.
asked Wang Anderson to go to Millard West to speak with a
guidance counselor and Y.C.W., among others. Filing 154 at
30. At that meeting, Miller told Wang Anderson that Y.C.W.
had reported being threatened. Filing 154 at 30. Wang
Anderson denied the accusation. Filing 154 at 30. Wang
Anderson also communicated her concerns about Y.C.W.'s
relationship with her teacher to Miller, who-according to
Wang Anderson- also failed to investigate. Filing 154 at 30,
on Y.C.W.'s report that she didn't feel safe going
home, Gentile and Miller removed Y.C.W. from Wang
Anderson's residence and took her to Project Harmony for
a temporary foster placement. Filing 154 at 33. Gentile had
also observed that when Wang Anderson answered the door, she
had been 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 (DHHS) went to Wang Anderson's residence
that evening, and reported hazardous conditions. Filing 154
after X.C.W. went to school the next day, Wheeler placed
X.C.W. in the temporary custody of DHHS. Filing 154 at 36.
Wheeler and a DHHS case worker went to Wang Anderson's
house, and Wheeler took Y.C.W.'s cell phone for
evidentiary purposes. Filing 154 at 35. 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, 37, 43. Wang
Anderson alleges that the evaluations were inadequate, and
that no evidence was generated of any injuries-but, if there
was such evidence, it was unlawfully concealed by various
defendants, including Douglas County and Schuchman. Filing
154 at 43.
juvenile proceeding was initiated in the Separate Juvenile
Court of Douglas County, Nebraska, by a deputy Douglas County
Attorney. 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. Specifically, Wang Anderson asserts that Wheeler and
Miller failed to disclose to the juvenile court that X.C.W.
did not feel unsafe at home. Filing 154 at 37. 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.
Wang Anderson blames Douglas County, in part, for the alleged
violation of her right to due process occasioned by the delay
in holding a hearing. Filing 154 at 47.
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 treating 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, DHHS
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. Schuchman filed those
petitions. 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.
filed a notice of appeal from the adjudication, assigning
error to the juvenile court's dismissal of the
termination allegations. Filing 154 at 87; filing 222-5 at
31-32. The juvenile court later entered a "permanency
planning order" that established a permanency objective
of reunification, although the order also placed strict
limitations on Wang Anderson's contact with the children.
Filing 154 at 92. Schuchman also appealed that order,
assigning error to the juvenile court's appointment of
counsel for Wang without a finding of indigency. Filing 154
at 93; filing 222-7 at 6.
Nebraska Court of Appeals eventually affirmed the permanency
planning order, holding that the State had waived its
argument with respect to appointment of counsel for Wang by
not raising it in the trial court. Filing 222-7 at
The court also affirmed the adjudication order. Filing 222-5
at 42. The court held that it was "clear that the State
proved by a preponderance of the evidence" that Wang
Anderson had been "subjecting [X.C.W. and Y.C.W.] to
dangerous and inappropriate discipline, failing to provide
proper parental care and support for [X.C.W. and Y.C.W.], and
. . . observed to be acting in a manner consistent with
untreated mental health needs." Filing 222-5 at 36. But,
the court explained, "parental rights should be
terminated only in the absence of any reasonable alternative
and as the last resort." Filing 222-5 at 42 (cleaned
up). And, the court found, the "point of last
resort" had not been reached in the case. Filing 222-5
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, and she continued treatment for her eating
disorder at Children's Hospital in Omaha. Filing 154 at
X.C.W.'s foster parents were unable to take her 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 that the two had exchanged telephone numbers and
texted one another, and eventually 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 her
previous foster placement. 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 to 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 her foster parents-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 her foster parents. 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.
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.
as to the County Defendants, Wang Anderson asserts:
1. A § 1983 claim premised on 4th and 14th Amendment
violations against Wheeler, Miller, and Gentile (filing 154
2. Policy-or-custom claims (Monell claims) against
Douglas County (filing 154 at 126);
3. State-law negligence claims against all defendants (filing
154 at 130);
4. A § 1983 claim based on violation of the
"substantive due process rights to family integrity and
the parent-child relationship" against all
"Individual Defendants" (filing 154 at 137);
5. A § 1983 claim based on deliberate indifference to
X.C.W.'s serious health and safety needs against all
"Individual Defendants" (filing 154 at 142-43);
6. A § 1983 claim based on "retaliation for
protected activity" against Douglas County, Wheeler,
Gentile, and Miller (filing 154 at 143);
7. A discrimination claim pursuant to 42 U.S.C. § 2000d
against Wheeler and Gentile (filing 154 at 145);
8. Section 20-148 "civil rights" claims against all
defendants (filing 154 at 148);
9. Negligent and intentional infliction of emotional distress
claims against all defendants (filing 154 at 149);
10. A § 1983 claim based on violation of 42 U.S.C.
§ 621 et seq. against Douglas County (filing
154 at 150); and
11. A § 1983 claim based on violation of 42 U.S.C.
§ 670 et seq. against Douglas County (filing
154 at 153).
County Defendants move to dismiss all those claims
except the Monell claims pursuant to