United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on plaintiff Catherine Yang Wang
Anderson's Motion for Reconsideration and for Leave to
File Second Amended Complaint (filing 510). Wang Anderson
asks the Court to reconsider-and to allow her to plead
over-the Court's previous orders granting several
defendants' motions to dismiss. But the Court finds no
basis to reconsider its previous rulings, and concludes that
Wang Anderson's second amended complaint would be futile.
Accordingly, the Court will deny her motion.
forth in Wang Anderson's operative complaint, 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
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. Millard Public
Schools (MPS) is the public school district where X.C.W. was
attending school-specifically, Millard West High School-when
the events giving rise to this litigation began. Filing 154
at 11-12, 23. According to Wang Anderson, Y.C.W. had an
"inappropriate" personal relationship with Matthew
Heys, her history teacher, because Y.C.W. was permitted and
encouraged to confide in him about personal
problems. Filing 154 at 24-28. Y.C.W. told Heys she
had sexual identity issues. Filing 154 at 35. Heys never
attempted to communicate with Wang Anderson about
Y.C.W.'s problems. Filing 154 at 35. Heys later explained
that he did not believe Wang Anderson would understand, and
that she "would be very angry and would hurt [Y.C.W.] if
she found out." Filing 154 at 36.
Anderson alleges that Y.C.W. communicated confidentially with
Heys beginning in August or September 2013, by email and text
message, despite the fact that Y.C.W. was no longer in his
history class. Filing 154 at 26. Heys did not report this
communication to anyone until October, when he told a school
counselor after Wang Anderson found out about it. Filing 154
at 27. And according to Wang Anderson, Millard West Principal
Gregory Tiemann and Millard West counselor Susan Hancock knew
about Y.C.W.'s communication with Heys and failed to stop
it, despite being asked to do so by Wang Anderson. Filing 154
at 27. Wang Anderson also alleges that MPS has
"policies, practices, customs or usages . . . which
essentially allowed teachers to act as counselors or
confidants for students, in violation of the rights of
parents . . . to direct the education and moral development
of their children." Filing 154 at 28. Wang Anderson
blames Y.C.W.'s friendship with Heys for a
"breakdown" in her own relationship with Y.C.W.
Filing 154 at 28.
Wang Anderson drove Y.C.W. to school on October 8, 2013, she
went directly to Heys, who took her to Hancock to report that
Wang Anderson had threatened her. Filing 154 at 28. The Sarpy
County deputy sheriff assigned to Millard West as the school
resource officer spoke to Y.C.W. shortly thereafter. Filing
154 at 28. Officers went to Wang Anderson's home, where
they told her about Y.C.W.'s allegations. Filing 154 at
30. Wang Anderson denied them, and law enforcement asked her
to go to Millard West to meet to a counselor about them,
which she did. Filing 154 at 30.
meeting at Millard West included Wang Anderson, Hancock, and
the resource officer, who said that Y.C.W. had made a number
of reports, including that Wang Anderson had threatened to
shoot her. Filing 154 at 30. Wang Anderson denied those
reports. Filing 154 at 30. Wang Anderson explained her own
concerns about the friendship between Y.C.W. and Heys, but
according to Wang Anderson, Hancock disregarded them. Filing
154 at 30. Based on Y.C.W.'s report that she didn't
feel safe going home, sheriff's officers removed her from
Wang Anderson's residence and took her to Project Harmony
for a temporary foster placement with Susan Derr. Filing 154
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.
case management was handled by the Nebraska Families
Collaborative (NFC), a nonprofit corporation that Wang
Anderson alleges "had a contract with [the Nebraska
Department of Health and Human Services (NDHHS)] to provide
case management and an individualized system of care for
families and their children and youth who are wards of NDHHS
involved in the Child Welfare or Juvenile Court System."
Filing 154 at 7. David Newell was the chief executive officer
of NFC. Filing 154 at 6. Daniel Little, Deanna
"Nina" Sheller, Sara Smith, Evan Winans, Melissa
Nance, Nicole Paul, Anna Richardson, Anne Petzel, and
Jennifer Richey (collectively, with Newell, the "NFC
defendants") were all employed by NFC in one capacity or
another, such as family engagement specialist, family
permanency specialist, family permanency specialist
supervisor, or family permanency director. Filing 154 at
was also placed in foster care with Derr, and both girls were
evaluated at Project Harmony. Filing 154 at 34, 37, 43. Wang
Anderson alleges that Suzanne Haney, M.D., a physician
employed by either Douglas County or Project Harmony,
examined X.C.W. and Y.C.W. there, and that she was negligent
in evaluating and treating them. Filing 154 at 43.
Wang Anderson also alleges, X.C.W. told Sheller she felt safe
with her mother and wanted to go home. Filing 154 at 43.
Nonetheless, 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
Anderson claims that both girls began to show signs of
"mental, emotional and physical distress" that went
unnoted and untreated, by NFC, Smith, and Winans among
others. Filing 154 at 48-49; see filing 154 at 65.
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. As a
general matter, Wang Anderson complains about the failure to
provide or facilitate visitation or family therapy throughout
the pendency of the juvenile proceeding, and accuses several
of the NFC defendants, among others, of being responsible for
that. Filing 154 at 41-42, 47, 62-64, 70-75, 81, 86-88, 94.
As a corollary, she also alleges that several of the NFC
defendants failed to promote family reunification to the
girls' therapists as a goal of therapy. Filing 154 at 42.
was admitted to a program at Children's Hospital and
Medical Center for treatment of eating disorders. Filing 154
at 54. Wang Anderson alleges that Martin Harrington, M.D.
(psychiatrist and program director) and Kara Beals (a
licensed independent mental health practitioner employed by
Children's) assessed X.C.W. on intake and departed from
the standard of care when doing so. Filing 154 at 54. X.C.W.
was partially hospitalized as part of the eating disorders
program-her time was split between the hospital and her
foster home. Filing 154 at 54-55. Wang Anderson claims that
X.C.W.'s participation in the Children's eating
disorders program actually worsened her condition, and that
she should have been treated without the partial
hospitalization. Filing 154 at 55, 59. She also claims that
Children's, Harrington, and Beals violated her
constitutional rights as a parent by admitting X.C.W. without
her permission. Filing 154 at 59, 61. And she alleges X.C.W.
was prescribed medications without parental consent. Filing
154 at 66.
suggestion of the girls' therapists at that time, DHHS
recommended to the juvenile court that all parental
visitation be therapeutic, and the juvenile court agreed.
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. She also
claims her right to visitation with X.C.W. was interfered
with by Children's, Harrington, Beals, and Children's
psychologist Michael Vance, damaging the parent-child
relationship. Filing 154 at 63-64. That visitation, she says,
"was essential to X.C.W.'s reunification with her
parents," and "family therapy was an
'integral' part of X.C.W.'s recovery from her
eating disorder and the standard of care for such a
disorder." Filing 154 at 71-72.
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.
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.
Wang Anderson alleges that several of the NFC defendants were
responsible for not properly coordinating or arranging for
X.C.W.'s health care services. Filing 154 at 68-69.
X.C.W. was placed at the Laureate Psychiatric Clinic and
Hospital in Tulsa, Oklahoma. Filing 154 at 73. Family therapy
was not provided at Laureate, allegedly because Harrington
and Beals failed to arrange it or inform Laureate of its
importance. Filing 154 at 75. Harrington and Beals were also
among those whom Wang Anderson alleges "failed to
provide Laureate Psychiatric staff with accurate or
sufficient information regarding X.C.W.'s parents."
Filing 154 at 76.
Anderson also alleges that her contact with X.C.W. at
Laureate was frustrated by the failure of several of the NFC
defendants to provide Laureate with a juvenile court order
providing for visitation and family therapy. Filing 154 at
74. She also alleges that NFC, Winans, and Smith failed to
provide Laureate with accurate or complete information about
her. Filing 154 at 76. And she alleges that X.C.W.'s
therapist at Laureate thought X.C.W. should have contact with
her parents, but Smith never arranged for it or told the
juvenile court. Filing 154 at 79.
X.C.W. was discharged from Laureate and put into a new foster
placement, with Jennice Reid-Hansen and Tyler Hansen. Filing
154 at 84. According to Wang Anderson, Reid-Hansen and Hansen
provided foster care services "pursuant to a contract or
agreement with the State of Nebraska, NDHHS, NFC, or KVC
[Behavioral Healthcare Nebraska, Inc.]" Filing 154 at
18. Wang Anderson's allegations against KVC arise out of
X.C.W.'s placement with Reid-Hansen and Hansen.
See filing 154 at 84-85.
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 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. Wang Anderson blames NFC, Richardson,
Paul, and Little for not permitting Wang Anderson to arrange
for X.C.W.'s transportation, not properly supervising
X.C.W., and for allowing X.C.W. to have a phone. Filing 154
at 89-90, 105. And she blames NFC, Richardson, and Paul for
failing to have the incident investigated or prevent future
contact between X.C.W. and the man. Filing 154 at 105.
anorexia relapsed, and she was again hospitalized. Filing 154
at 91-92. X.C.W. blames several of the NFC defendants for not
acting to provide X.C.W. with proper care. 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 while 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. Harrington and Beals
are among those singled out for failing to implement family
therapy. Filing 154 at 81, 86.
Anderson also blames NFC, Little, Richardson, and Paul for
allegedly refusing to comply with the juvenile court's
visitation order or arrange for visitation. Filing 154 at 95.
In particular, she alleges that Richardson lied to counsel in
the juvenile court proceeding in an email indicating that
X.C.W. didn't want to make a telephone call to her
parents. 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. Wang Anderson complains that Harrington, Beals,
and Christina Johnson-Gunn, M.S., L.M.H.P. all "failed
to encourage X.C.W. or Y.C.W. to engage in visitation or
other contact with Wang Anderson." Filing 154 at 88. And
she says ongoing failure to provide family
therapy-attributable to Children's, Harrington, and
Beals, among others-was contrary to the standard of care and
unconstitutional. Filing 154 at 56, 106-07.
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. Wang Anderson accuses the NFC
defendants of breaking those rules and discriminating against
them for being Chinese. Filing 154 at 83, 100; see
filing 154 at 102. 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,
by NFC, Richardson, or Paul, among others. Filing 154 at
109-10. Wang Anderson claims the incident wasn't
discovered because NFC, Richardson, and Paul weren't
monitoring X.C.W.'s text messages. Filing 154 at 109.
Wang Anderson generally accuses X.C.W.'s foster parents
of being incompetent, and alleges that several of the NFC
defendants knew that but arranged for X.C.W.'s placement
with them anyway. Filing 154 at 85-86, 91, 102-03, 113. And
Harrington is among those that Wang Anderson blames for
failing "to have an appropriate safety plan in place or
communicate any such plan to Project Everlast when X.C.W.
attended the March 14, 2015 meeting." Filing 154 at 109.
period of time, "family therapy" was arranged, by
Harrington among others, that included X.C.W.'s foster
parent, rather than Wang Anderson or Wang, as the family
member. Filing 154 at 97. This was, according to Wang
Anderson, contrary to the standard of care and
unconstitutional. Filing 154 at 97. At around the same time,
several defendants, including Children's and Harrington,
allegedly refused to provide health information about X.C.W.
and Y.C.W. to Wang Anderson, despite being asked for it.
Filing 154 at 104.
in June 2015, Wang Anderson was permitted to participate in
family therapy with Johnson-Gunn. Filing 154 at 113. But Wang
Anderson 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 Johnson-Gunn 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,
Johnson-Gunn "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.
January 2016, several officials and care providers-including
Harrington-allegedly "agreed and decided to terminate
effective ongoing health care provided by [Johnson-Gunn] for
X.C.W. and ongoing services for the family." Filing 154
at 120. Despite having accused Johnson-Gunn of departing from
the standard of care by encouraging sex trafficking, Wang
Anderson also claims that NFC, Richey, and Petzel acted
"with deliberate indifference to X.C.W.'s serious
health needs" by removing Johnson-Gunn as the family
therapist, falling below the standard of care and violating
X.C.W.'s constitutional rights. Filing 154 at 120.
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. Wang Anderson
blames the NFC defendants, who allegedly "failed to
provide necessary transportation for X.C.W. and allowed her
unmonitored and unsupervised access to electronic
communication devices and the internet." Filing 154 at
117. And she contends that NFC, Petzel, and Richey failed to
bring the incident to the juvenile court's attention.
Filing 154 at 117.
not completely clear from the complaint what was happening
with Y.C.W. during much of that time. But Wang Anderson
alleges that "from October 8, 2013 through April 8,
2016," most of the NFC defendants failed to provide for
Y.C.W.'s needs, and her health declined. Filing 154 at
2016, the juvenile court changed the permanency objective for
X.C.W. to independent living. Filing 154 at 121. Wang
Anderson alleges that happened, in part, because NFC, Richey,
and Petzel "presented false, misleading, or inaccurate
information" to the juvenile court, although it's
not clear what that was. Filing 154 at 121. X.C.W. 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. Wang Anderson claims
that the NFC defendants should have known X.C.W. was too
vulnerable for independent living, and failed to provide for
her care. Filing 154 at 122. 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
Anderson asserted 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 claimed 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
claimed 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 said, 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 asserted
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.
Court dismissed many of those claims. As most relevant to
Wang Anderson's motion to reconsider and for leave to
amend, the Court dismissed the negligence claims asserted
against X.C.W.'s foster parents, see filing 481,
some of X.C.W.'s medical care providers, see
filing 485, KVC, see filing 490, and the NFC
defendants, see filing 502. And the Court dismissed
the constitutional claims asserted against MPS, Heys,
Tiemann, and Hancock (the Millard defendants). See
STANDARD OF REVIEW
Court should freely give leave to amend a complaint when
justice so requires. Fed.R.Civ.P. 15(a)(2); see Kozlov v.
Associated Wholesale Grocers, Inc., 818 F.3d 380, 394
(8th Cir. 2016). But parties do not have an absolute right to
amend their pleadings, even under this liberal standard.
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715
(8th Cir. 2008); see Sorace v. United
States, 788 F.3d 758, 767 (8th Cir. 2015). And
futility is a valid basis for denying leave to amend.
Munro v. Lucy Activewear, Inc., 899 F.3d 585, 589
(8th Cir. 2018), cert. denied, 139 S.Ct. 941 (2019).
the Court denies leave on the basis of futility, it means the
Court has reached the legal conclusion that the amended
complaint could not withstand a motion to dismiss under
Fed.R.Civ.P. 12(b)(6). Id. at 589. To survive a
motion to dismiss under Rule 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). 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.
plaintiff's motion to amend the complaint will be granted
if she shows that such an amendment would be able to save an
otherwise meritless claim. Munro, 899 F.3d at 589.
But permission to amend may be withheld if the plaintiff does
not have colorable grounds for relief. Doe ex rel. Doe v.
Sch. Dist. of City of Norfolk, 340 F.3d 605, 616 (8th
Anderson's motion is directed at reviving her negligence
claims against the following sets of defendants: (1) the NFC
defendants; (2) Reid-Hansen, Hansen, and Derr; (3) KVC; and
(4) Children's, Harrington, Haney, Beals, and
Johnson-Gunn (collectively, the Children's defendants).
Filing 510 at 1. In addition, Wang Anderson seeks to undo the
dismissal of her constitutional claims against the Millard
defendants. Filing 510 at 1-2.
however, not entirely clear to the Court what Wang
Anderson's combined motion for reconsideration and for
leave to amend is asking for, precisely-that is, it's not
clear whether Wang Anderson is arguing that the claims she
wants reinstated should be reinstated because she contends
the Court was wrong in the first place, or because she
now states a claim for relief in her proposed
amended complaint. See filing 511 at 2-4. That also
means it's unclear whether her motion for leave to amend
is meant to resuscitate other claims that the Court
dismissed, but are repleaded in her proposed amended
complaint-her brief discusses none of them in particular.
See filing 511 at 5. And her reply brief exacerbates
the confusion. E.g.filing 551 at 12, 18-19.
Court is not persuaded that Wang Anderson can file an
enormous proposed amended complaint and simply assert that it
"cures the deficiencies which the Court found in her
Amended Complaint," filing 511 at 5, without actually
explaining how. Below, the Court's
discussion will be largely limited to the claims for
which Wang Anderson seeks reconsideration-that is, the
Court's decision will actually discuss the claims that
Wang Anderson's briefing also actually discusses.
defendants argue that Wang Anderson's request to amend
her negligence claims against them should be denied for two
reasons: first, because they don't satisfy Fed.R.Civ.P.
8, and second, because they did not ...