Wang Anderson v. The State of Nebraska et al

Filing 445

MEMORANDUM AND ORDER - Papillion La Vista's Motion to Dismiss (filing 196 ) is denied without prejudice. This matter is referred to the Magistrate Judge for case progression upon disposition of the other pending motions to dismiss. Ordered by Judge John M. Gerrard. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CATHERINE YANG WANG
ANDERSON, Individually and on
behalf of X.C.W. as the "Next Friend"
of X.C.W., a minor,
Plaintiff,

4:17-CV-3073
MEMORANDUM AND ORDER

vs.
THE STATE OF NEBRASKA, et al.,
Defendants.
This matter is before the Court on the motion to dismiss (filing 196) of
the Papillion La Vista Community Schools. That motion will be denied
without prejudice.
BACKGROUND
The 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. 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. After
Y.C.W. reported to officials at her high school—in the Millard Public Schools,
not Papillion La Vista—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. Filing 154 at 33. After X.C.W.
went to school the next day—again, in Millard, not Papillion La Vista—she
was also placed in the temporary custody of the Nebraska Department of
Health and Human Services (DHHS). Filing 154 at 36. 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.
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
DHHS, then after a hearing, the juvenile court continued DHHS's temporary
custody. Filing 154 at 45-46.
X.C.W. was sent to a program for treating eating disorders. Filing 154
at 54. But 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 83-84, 86. Her new foster parents—Tyler Hansen and Jennice
Reid-Hansen—lived in Bellevue, Nebraska at the time, filing 154 at 84, and
the Court infers that this was when X.C.W. was enrolled in a Papillion La
Vista school.1
1

It is not stated in the complaint when X.C.W. was enrolled in Papillion La Vista, nor are

any facts alleged about anything that might have happened there. The factual paucity of

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But 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. After discharge from Remuda
Ranch, X.C.W. was returned to her foster placement with Hansen and ReidHansen, who moved to Blair, Nebraska, resulting in X.C.W.'s transfer to the
Blair School District in 2015. Filing 154 at 102, 112-13.
In May 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 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
the complaint as to Papillion La Vista is, however, not addressed by Papillion La Vista's
motion to dismiss. See filing 197. The Court infers that X.C.W. attended a Papillion La
Vista school at this point because Bellevue is close to the boundaries of the Papillion La
Vista district, and it seems likely that had X.C.W. attended a Bellevue school during this
timeframe, the Bellevue school district would have been sued.

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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. Of those claims, six are asserted against Papillion La
Vista: §§ 1983 & 1985, negligence, § 504, § 20-148, and the emotional distress
claims. Filing 154 at 126, 130, 147-49.
STANDARD OF REVIEW
To survive a motion to dismiss under Fed. R. Civ. P. 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). 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. 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.
DISCUSSION
Papillion La Vista moves to dismiss the state-law negligence and
emotional distress claims for failure to comply with the presentment
requirements of the Nebraska Political Subdivisions Tort Claims Act, Neb.
Rev. Stat. § 13-901 et seq. (PSTCA). Filing 197 at 1; see filing 154 at 130, 14849. Under Nebraska law, the filing or presentment of a claim to the
appropriate political subdivision, while it is not a jurisdictional prerequisite,
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is a condition precedent to commencement of a suit under the PSTCA. Keller
v. Tavarone, 628 N.W.2d 222, 230 (Neb. 2001). And failure to present a claim
in compliance with the PSTCA warrants dismissal. See id. at 232-33.
But such noncompliance must be raised as an affirmative defense. Wise
v. Omaha Pub. Sch., 714 N.W.2d 19, 22 (Neb. 2006). So, it can only be
asserted in a Rule 12(b)(6) motion when, on the face of the complaint,
allegations are included which could be the subject of the affirmative defense.
See Weeder v. Cent. Cmty. Coll., 691 N.W.2d 508, 515 (Neb. 2005). And in this
case, the operative complaint is silent with respect to Wang Anderson's
compliance with the PSTCA. See filing 154; see also Weeder, 691 N.W.2d at
515. Accordingly, whether Wang Anderson complied with the PSTCA cannot
be decided on a motion to dismiss. See id.; see also Wise, 714 N.W.2d at 22.2
The Court will, therefore, deny Papillion La Vista's motion to dismiss Wang
Anderson's state law claims, without prejudice to reassertion of its PSTCA
defenses through subsequent pleadings and motions.
Papillion La Vista also moves to strike Wang Anderson's jury demand.
But the scope of both the jury demand and the motion is unclear. The
complaint simply says "Jury Demand" in the caption. Filing 154 at 1. That's
certainly sufficient for purposes of Fed. R. Civ. P. 38(b), see NECivR 38.1, but
it doesn't tell the Court whether Wang Anderson really expects to try all her
2

The Court recognizes that before adoption of the Nebraska Rules of Pleading in Civil

Actions, a plaintiff's burden to prove compliance with the PSTCA could be tested by
demurrer. See Millman v. Cty. of Butler, 458 N.W.2d 207, 218 (Neb. 1990). But the
Nebraska Supreme Court expressly held in Weeder—relying on federal rules of civil
procedure—that noncompliance with the PSTCA can be raised on a motion to dismiss only
when the necessary facts appear on the face of the complaint. 691 N.W.2d at 515; see also,
e.g., Schmidt v. United States, 933 F.2d 639, 640 (8th Cir. 1991).

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claims to a jury. Papillion La Vista's brief in support of its motion is equally
general—Papillion La Vista simply asks to strike the jury demand because, it
says, Wang Anderson has no right to a jury trial under the PSTCA. Filing
197 at 3; see Neb. Rev. Stat. § 13-907. Wang Anderson's response is narrower:
she says only that she is entitled to a jury trial on her § 504 claim. Filing 278
at 3. Whether she is demanding, or ever was demanding, a jury trial as to
other claims—particularly her other civil rights claims—is uncertain. And
then Papillion La Vista, for its part, discusses only the § 504 claim in its reply
brief. Filing 279 at 2-4.
One thing the Court can say with confidence is that the parties
disagree about whether Wang Anderson has a right to jury trial on her § 504
claim. And on that point, Wang Anderson has the stronger argument. Courts
to have addressed the question have held that to the extent that a § 504
claim seeks legal relief, the plaintiff has a Seventh Amendment right to a
jury trial. See Waldrop v. S. Co. Servs., 24 F.3d 152, 156-57 (11th Cir. 1994);
Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 832 (4th Cir. 1994); Smith
v. Barton, 914 F.2d 1330, 1338 (9th Cir. 1990); Matthews v. Jefferson, 29 F.
Supp. 2d 525, 537 (W.D. Ark. 1998); cf. Rodgers v. Magnet Cove Pub. Sch., 34
F.3d 642, 644-45 (8th Cir. 1994). It is true, as Papillion La Vista argues, that
the PSTCA's waiver of sovereign immunity is limited with respect to the
right to a jury trial. Filing 197 at 4-6. But sovereign immunity from § 504
claims has been abrogated by Congress. See 42 U.S.C. § 2000d-7; Franklin v.
Gwinnett Cty. Pub. Sch., 503 U.S. 60, 72-73 (1992); see also Pandazides, 13
F.3d at 828 n.7.; Matthews, 29 F. Supp. 2d at 536-37.
Similarly, it has been held that the Seventh Amendment guarantees a
right to a jury trial on the merits of an action seeking legal relief under §
1983. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687,

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709 (1999). But that right is not unlimited. See id. at 722. And the parties
have not engaged on that question, or on any issue that would help the Court
establish the contours of Wang Anderson's claims. In other words, whether
Wang Anderson has a right to a jury trial on some or all of her claims
depends, not only on the PSTCA, but the nature of the claim and the relief
sought. And the briefing and record, at this point, don't permit the Court to
definitively resolve that. Nor is it necessary to do so now.
Accordingly, the Court will deny Papillion La Vista's motion to strike
Wang Anderson's jury demand, again without prejudice to reasserting the
issue when necessary—that is, when it's clear which (if any) of Wang
Anderson's claims will be tried, and precisely what questions those claims
will ask the trier of fact to answer.
IT IS ORDERED:
1.

Papillion La Vista's Motion to Dismiss (filing 196) is denied
without prejudice.

2.

This matter is referred to the Magistrate Judge for case
progression upon disposition of the other pending motions
to dismiss.

Dated this 30th day of April, 2018.
BY THE COURT:

John M. Gerrard
United States District Judge
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