Wang Anderson v. The State of Nebraska et al

Filing 481

MEMORANDUM AND ORDER - X.C.W.'s claims are dismissed without prejudice. The Clerk of the Court is directed to modify the case caption with respect to Wang Anderson by striking "Individually and on behalf of and as the 'Next Friend' ; of minor X.C.W." Derr's motion to dismiss (filing 242 ) is granted. Reid-Hansen and Hansen's motion to dismiss (filing 251 ) is granted. Tina Anderson's motion to dismiss (filing 266 ) is granted. Reid-Hansen and Hansen's motion to strike (filing 387 ) is denied as moot. Derr, Reid-Hansen, Hansen, and Tina Anderson are terminated as parties. 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,

4:17-CV-3073

Plaintiff,
MEMORANDUM AND ORDER
vs.
THE STATE OF NEBRASKA, et al.,
Defendants.
This 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.
I. BACKGROUND
The plaintiff, Catherine Yang Wang Anderson ("Wang Anderson")1 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

1

Wang Anderson and Tina Anderson are not related. Filing 154 at 18; filing 268-1 at 3.

some point, respite care2 or foster care for X.C.W. or Y.C.W.
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.
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 2428. 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.
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 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.

2

"Respite care" is support for foster parents, "especially in cases where the child's needs are

high or foster parents have several children. Respite can be provided by a family member of
the foster parent or by a provider. " 390 Neb. Admin. Code § 7-001.10.

-2-

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 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 2.3
Wang 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.
X.C.W. 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

3

The Court recognizes that this fact is found in Anderson's affidavit, not Wang Anderson's

pleading. But it does not contradict the pleading, and is used only for clarity and context.

-3-

"certain ways of life, behaviors or actions that were inappropriate, morally
corruptive, harmful and detrimental. . . ." Filing 154 at 58.
On 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.
Meanwhile, 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.
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 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.
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. Wang Anderson alleges that at Remuda

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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.
After discharge from Remuda Ranch, X.C.W. was returned to ReidHansen 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.
Starting 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

-5-

how to safely or legally engage in prostitution, shortly after X.C.W. had been
sold for money." Filing 154 at 119.
Meanwhile, 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.
Y.C.W. 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.
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

-6-

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.
Specifically, 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.
II. STANDARD OF REVIEW
A 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 allegation. Id.

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A 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).
To 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.
When 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

-8-

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).
III. DISCUSSION
The 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, ReidHansen 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.
1. STANDING/REAL PARTY IN INTEREST
The 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.4 Fed. R. Civ. P. 17(a)
provides that an action must be prosecuted in the name of the real party in
4

Those are distinct concepts. See Curtis Lumber Co. v. Louisiana Pac. Corp., 618 F.3d 762,

770 n.2 (8th Cir. 2010); Lucas v. Lucas, 946 F.2d 1318, 1322-23 (8th Cir. 1991); Walker
Mfg., Inc. v. Hoffmann, Inc., 220 F. Supp. 2d 1024, 1030 n.6 (N.D. Iowa 2002). But the
Court need not explore the distinction: Wang Anderson neither has standing nor is the real
party in interest. See Curtis, 618 F.3d at 770 n.2.

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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. 2011).
But a 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.5
Accordingly, Wang Anderson has lost whatever standing she once
might have had to prosecute X.C.W.'s claims,6 and cannot represent X.C.W.'s
5

The Court notes that in opposing some other defendants' motions to dismiss—but not in

opposing these motions—Wang Anderson has argued that the allegations of the amended
complaint "amount to a claim that X.C.W. is incapable of bringing this action on her own
behalf because of her poor physical, mental, and emotional health[.]" E.g. filing 442 at 56.
They don't. While the allegations of the complaint reflect an eating disorder and other
mental health issues, there is nothing to suggest, for instance, that X.C.W. is presently
unable to appreciate her position and make a rational choice with respect to continuing or
abandoning litigation. See Smith By & Through Missouri Pub. Def. Comm'n v. Armontrout,
812 F.2d 1050, 1056 (8th Cir. 1987) (citing Rees v. Peyton, 384 U.S. 312 (1966)).
6

The Court is aware of the Eighth Circuit's holding that because standing is determined as

of the lawsuit's commencement, the Court considers the facts as they existed at that time.
A.J. ex rel. Dixon v. UNUM, 696 F.3d 788, 789 (8th Cir. 2012). But the Eighth Circuit has
also said that standing must persist throughout all stages of litigation. E. Iowa Plastics,
Inc. v. PI, Inc., 832 F.3d 899, 903 (8th Cir. 2016); see also Hollingsworth v. Perry, 570 U.S.
693, 705 (2013) (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)); cf.

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interests pursuant to Rule 17(c). See, e.g., Adm'r-Benefits for Exxon Mobil
Sav. Plan v. Williams, 567 F. App'x 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. 3:13CV-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 F.
App'x 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 F. App'x 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).
Wang 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).

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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.
And finally, Wang Anderson cites Garza v. Fliedner, No. 5-15-01067CV, 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

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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.
In sum, 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 without prejudice.
2. NEGLIGENCE CLAIMS
To 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.7 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 Rule 8(a) is to
give the defendant fair notice of what the claim is and the grounds on upon
which it rests. Twombly, 550 U.S. at 555.

7

Even Wang Anderson's brief fails to narrow the field to the allegations relating to the

defendants at issue. E.g. filing 386 at 3-53.

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But there is nothing short or plain about Wang Anderson's complaint.
The effect of the pleading is essentially to provide every defendant with
"notice" that they're expected to defend every decision they made over the
course of 4 years. It's the very model of a "kitchen sink" or "shotgun"
complaint—"in which a plaintiff brings every conceivable claim against every
conceivable defendant"—and it "fails to state a claim for relief because it does
not provide fair notice of the grounds for the claims made against a particular
defendant." See Tatone v. SunTrust Mortg., Inc., 857 F. Supp. 2d 821, 831 (D.
Minn. 2012).
For example—and this is just an example—the complaint accuses every
defendant of being negligent by "disregarding and failing to timely consider
and investigate X.C.W.'s Chinese relatives as a placement, on multiple
occasions[.]" Filing 154 at 134. But that obviously can't be true of every
defendant, so how do we know which one is really accused? True, it might be
possible to provide some specificity by comparing that accusation to the 124
pages of factual allegations that describe what happened in more detail. But
that still can't be accomplished with any confidence, and it's the plaintiff's job
in the first place. The Court, despite significant effort, really can't tell
whether, or why, Wang Anderson thinks that these particular defendants
breached a duty toward her. The complaint narrates the previous 4 years of
Wang Anderson's life, then invites the Court to decide whether anything in
there might have been tortious. That's not an invitation the Court is obliged,
or inclined, to accept.
But basic principles of tort law can be broadly applied to the few things
that are reasonably clear: who these parties are. In order to prevail in a
negligence action, a plaintiff must establish the defendant's duty to protect
the plaintiff from injury, a failure to discharge that duty, and damages

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proximately caused by the failure to discharge that duty. Bell v. Grow With
Me Childcare & Preschool LLC, 907 N.W.2d 705, 713 (Neb. 2018). The
threshold issue in any negligence action is whether the defendant owes a
legal duty to the plaintiff. Id. And whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a particular
situation. Id.
The Court can find nothing in Wang Anderson's complaint suggesting
the existence of a legal duty owed to her by Derr, Reid-Hansen, Hansen, or
Anderson.8 Wang Anderson suggests that the "duties established by [the
Nebraska statutes and regulations regarding foster care] apply to all foster
caregivers, and are owed to both the child and the child's parents." Filing 386
at 73; see filing 341 at 21; filing 449 at 14.
A court may determine that a statute gives rise to a tort duty to act in
the manner required by the statute where the statute is enacted to protect a
class of persons which includes the plaintiff, the statute is intended to
prevent the particular injury that has been suffered, and the statute is
intended by the Legislature to create a private liability as distinguished from
one of a public character. Claypool v. Hibberd, 626 N.W.2d 539, 545 (Neb.
2001); accord Stonacek v. City of Lincoln, 782 N.W.2d 900, 909 (Neb. 2010).
But where the Legislature has not by its express terms or by implication
provided for civil tort liability, under principles of judicial restraint, it is
prudent that the Court not do so. Stonacek, 782 N.W.2d at 909. And nothing
in the applicable statutes and regulations—which are discussed in

8

Because X.C.W.'s claims will be dismissed, only Wang Anderson's claims are at issue, and

the Court does not understand Wang Anderson to be alleging that any defendant's
affirmative conduct created a risk of physical harm to her. So, the Restatement (Third) of
Torts § 7 is not applicable here. See id. at 718.

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significantly more detail below—"expressly or by implication indicate[s] that
they create a private tort liability[.]" Id. at 910.
Claypool, 626 N.W.2d 539, is instructive. There, a juvenile tragically
committed suicide after he was cited for theft by law enforcement, then
released without his parents being notified. Id. at 542-43. His mother sued,
alleging that a tort duty to contact his parents existed by virtue of Neb. Rev.
Stat. § 43-250, which by its terms would have required such notice. But the
Nebraska Supreme Court found that the statute was intended to protect the
due process rights of juveniles, not to prevent self-harm or create a civil
remedy. Id. at 546.
Similarly, the primary purpose of the regulatory scheme upon which
Wang Anderson relies here is the protection of foster children. A secondary
purpose is to clearly establish the roles to be played by the many people
responsible for a juvenile placement. But there is no indication that the
statutes or regulations were intended to create an actionable tort duty to the
natural parents of foster children. To conclude otherwise, in fact, would place
contradictory and impossible demands on foster parents and others in the
juvenile system. For instance, Wang Anderson suggests that the defendants
had a duty to maintain the connection of X.C.W. and Y.C.W. to their parents
while in foster care. See filing 341 at 22. But there is undoubtedly a separate,
and arguably more compelling, duty for foster parents to act in the best
interest of their wards—and in many cases, those duties would be likely to
conflict. To infer a tort duty of foster parents to reunite children with their
natural parents, from the existence of statutes and regulations governing
foster care, would almost amount to imposing strict liability on foster parents
for doing their jobs. The Court can find no basis for Nebraska law to "give

- 16 -

recognition and effect" to conform to that standard of conduct. See Erickson v.
U-Haul Int'l, Inc., 738 N.W.2d 453, 460 (Neb. 2007).
In sum: Wang Anderson's complaint is deficient, because it fails to
provide any given defendant with fair notice of what that defendant is alleged
to have done that was negligent. But the complaint also fails to state a claim
for negligence against these defendants because it does not allege facts from
which it can be inferred, under Nebraska law, that they owed a tort duty to
Wang Anderson—and if there is no duty owed, there can be no negligence.
McReynolds v. RIU Resorts & Hotels, S.A., 880 N.W.2d 43, 47 (Neb. 2016).
Wang Anderson's negligence claims as to these defendants will be dismissed.
3. CONSTITUTIONAL CLAIMS - STATE ACTION
Wang Anderson asserts various constitutional claims against the
defendants pursuant to § 1983. But the defendants were not employees of
either the state or a political subdivision of the state, and "[t]o state a claim
under § 1983, a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law." West
v. Atkins, 487 U.S. 42, 48 (1988) (emphasis supplied). "[A]cting under color of
state law requires that the defendant in a § 1983 action have exercised power
possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law." West, 487 U.S. at 49
(quotation omitted).
A private actor can be considered to act under color of state law "if,
though only if, there is such a close nexus between the State and the
challenged action that seemingly private behavior may be fairly treated as
that of the State itself." Brentwood Acad. v. Tennessee Secondary Sch.
Athletic Ass'n, 531 U.S. 288, 295 (2001) (quotation omitted). This "close
- 17 -

nexus" exists where the private party is "a willful participant in joint activity
with the State in denying a plaintiff's constitutional rights." Magee v.
Trustees of Hamline Univ., Minn., 747 F.3d 532, 536 (8th Cir. 2014)
(quotation omitted). Thus, to survive a motion to dismiss, a "plaintiff must
plausibly allege a mutual understanding, or a meeting of the minds, between
the private party and the state actor." Id. In doing so, the plaintiff must
allege something more than "multiple contacts" between the private party
and the state; rather, she must plead "specific facts plausibly connecting" the
alleged concerted action to the alleged violation. Id.
Inquiry into the nexus between the state and the challenged action "is
necessarily fact intensive," Ramirez-Peyro v. Holder, 574 F.3d 893, 901 (8th
Cir. 2009), but the Supreme Court has identified "a host of facts that can bear
on the fairness of" attributing the challenged action to the state, see
Brentwood Acad., 531 U.S. at 296.
We have, for example, held that a challenged activity may be
state action when it results from the State's exercise of coercive
power, when the State provides significant encouragement, either
overt or covert, or when a private actor operates as a willful
participant in joint activity with the State or its agents. We have
treated a nominally private entity as a state actor when it is
controlled by an agency of the State, when it has been delegated a
public function by the State, when it is entwined with
governmental policies, or when government is entwined in its
management or control.
Id. (cleaned up). And in applying those principles, courts have consistently

- 18 -

held that the decisions of foster parents are not state action.9 See Ismail v.
Cty. of Orange, 693 F. App'x 507, 512 (9th Cir. 2017), cert. denied sub nom.
Ismail v. Orange Cty., Cal., 138 S. Ct. 1329 (2018); Leshko v. Servis, 423 F.3d
337, 341 (3d Cir. 2005); Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341,
1348 (11th Cir. 2001); Milburn by Milburn v. Anne Arundel Cty. Dep't of Soc.
Servs., 871 F.2d 474, 479 (4th Cir. 1989); Brown v. Hatch, 984 F. Supp. 2d
700, 708-09 (E.D. Mich. 2013) (collecting cases); Castonguay v. Fleener, No.
8:09-CV-393, 2009 WL 5033974, at *2 (D. Neb. Dec. 14, 2009); P.G. v. Ramsey
Cty., 141 F. Supp. 2d 1220, 1226 (D. Minn. 2001); Lintz v. Skipski, 807 F.
Supp. 1299, 1306 (W.D. Mich. 1992), aff'd, 25 F.3d 304 (6th Cir. 1994); see
also Key v. Drake, 111 F.3d 133 (7th Cir. 1997); Malachowski v. City of Keene,
787 F.2d 704, 710-11 (1st Cir. 1986); cf. United States v. Peneaux, 432 F.3d
882, 896 (8th Cir. 2005); Myers v. Morris, 810 F.2d 1437, 1467 (8th Cir. 1987),
abrogated on other grounds by Burns v. Reed, 500 U.S. 478 (1991).
9

Wang Anderson argues that the Eighth Circuit held, in Norfleet By & Through Norfleet v.

Arkansas Dep't of Human Servs., 989 F.2d 289 (8th Cir. 1993), that "§ 1983 claims arising
out of foster care services are allowed against foster parents." Filing 386 at 65. It is true
that in Norfleet, the Eighth Circuit permitted a § 1983 claim to proceed against a "certified
foster parent operating a foster home for [the Arkansas Department of Human Services."
Id. at 290. But in neither the district court decision nor the Court of Appeals is there any
discussion of the elements of state action, and "[q]uestions which merely lurk in the record,
neither brought to the attention of the court nor ruled upon, are not to be considered as
having been so decided as to constitute precedents." Cooper Indus., Inc. v. Aviall Servs.,
Inc., 543 U.S. 157, 586 (2004) (citing Webster v. Fall, 266 U.S. 507, 510 (1925)). In fact, the
foster parent in Norfleet conceded that she was a state official, as the premise of a qualified
immunity defense. See Norfleet By & Through Norfleet v. State of Ark. Dep't of Human
Servs., 796 F. Supp. 1194, 1201 n.3 (E.D. Ark. 1992), aff'd sub nom Norfleet, 989 F.2d 289.
And as discussed below, nothing precludes foster parents from being state actors in any
given case—it simply depends on the facts of the case.

- 19 -

Generally speaking, a foster parent's decisions within the scope of that
position are not dictated by the coercive power of the state, overtly or covertly
encouraged by the state, or jointly undertaken with the state. See Brentwood
Acad., 531 U.S. at 296; see also Leshko, 423 F.3d at 341; Milburn, 871 F.2d at
479; Lintz, 807 F. Supp. at 1306. Nor have foster parents been delegated with
a public function by the state. See id.; see also Malachowski, 787 F.2d at 711;
Lintz, 807 F. Supp. at 1306. And while the provision of foster care is
extensively regulated, that does not mean that it is controlled by or entwined
with the state. See Rayburn, 241 F.3d at 1348; Brown, 984 F. Supp. 2d at
708-09; Lintz, 807 F. Supp. at 1306; see also Rendell-Baker v. Kohn, 457 U.S.
830, 841 (1982).
Wang Anderson's argument to the contrary relies on the Nebraska
statutes and regulations governing provision of foster care. See filing 386 at
56-60. And foster care is well-regulated. Foster care placements are tracked
in a statewide register maintained by the Foster Care Review Office. Neb.
Rev. Stat. § 43-1303. Local foster care review boards conduct regular reviews
for each case of a child in a foster care placement. Neb. Rev. Stat. § 43-1308.
Foster parents are required, when a juvenile court reviews a dispositional
order, to complete a form requesting information about the child, including
information about the child's medical condition; emotional condition;
education; activities and relationships; behavior before, during, and after
visitation; and whether the child is receiving all necessary services. Neb. Rev.
Stat. § 43-1314.02.
Non-relative foster parents must be licensed by the NDHHS. Neb. Rev.
Stat. § 71-1902(2)(a). Before issuing a foster care license, the NDHHS must
investigate the foster home and conduct a background check on the
prospective foster parents. Neb. Rev. Stat. § 71-1903. The foster home may be

- 20 -

re-inspected at any time. Id. And foster parents are reimbursed by the State
for their expenses and services. See Neb. Rev. Stat. § 43-4210 et seq.; 390
Neb. Admin. Code §§ 7-004.05 & 7-004.06.
NDHHS regulations set forth the respective roles and responsibilities
for the various actors in the foster care system in some detail. See 390 Neb.
Admin. Code § 7-001. Generally described, the NDHHS may assume the role
of legal custodian or guardian for a child, see 390 Neb. Admin. Code § 7001.01, and the NDHHS case worker assumes primary responsibility for
locating an appropriate placement for the child, see 390 Neb. Admin. Code §
7-001.02A. The case worker has a number of specific responsibilities,
including sharing information with the foster parent (or "care provider") and
establishing the visitation plan for the child and his or her family. Id.
The specific responsibilities of the foster parent are also set forth in
substantial detail. The foster parent must:


Communicate and work cooperatively as a team member
with the [case] worker, parents and service providers
toward the goals of the case plan;



Communicate and work cooperatively as a team member
with the parents;



Work toward the goal of permanence as outlined in the case
plan;



Regularly discuss with the [case] worker the child's
progress, needs and behaviors;



Notify the [case] worker of law violations by the child or
law enforcement contact with the child;



Notify the [case] worker of emergencies including medical
problems and runaway behavior;

- 21 -



Arrange for routine and emergency medical care for the
child and advise the [case] worker. Use the medical
provider covered by the parents' insurance, if applicable, or
the provider identified by the [case] worker;



Secure specific care and treatment for the child such as
medical, psychological or school evaluations, under the
guidance of the [case] worker as outlined in the case plan;



Recognize respite care as a necessary support to provide
quality care to the child;



Cooperate with the development and implementation of the
visitation plan;



Advocate for the child's educational rights and help the
school

staff

understand

the

child's

emotional

and

educational needs;


Arrange for or provide transportation for the child;



To the [case] workers, provide written documentation
regarding the child's progress and contacts with parents
and other family members; and



Attend pre-service and ongoing training if licensure is
involved.

390 Neb. Admin. Code § 7-001.05. A foster parent's daily child care decisions
must be made in accordance with NDHHS policies and guidelines and
licensing requirements, although "[s]pecial conditions about daily care will be
determined by the [case] worker." 390 Neb. Admin. Code § 11-001. The foster
parent is required to permit the foster-child to participate in age-appropriate
activities, practice his or her religious beliefs, and "[e]xercise the Reasonable
and Prudent Parent Standard" in making those determinations. 395 Neb.
- 22 -

Admin. Code § 3-001.09. And the foster parent must provide "age appropriate
discipline" for the child, not to include denying necessities, restraint, abuse,
physical punishment or threat of physical punishment, or denying visitation.
395 Neb. Admin. Code § 3-001.11.
Wang Anderson contends that those statutes and regulations "clearly
demonstrate that in Nebraska, foster caregivers are state actors. . . ." Filing
386 at 59. But while that possibility is not foreclosed, it is certainly not
compelled either: the inquiry is "necessarily fact-bound" and the issue is
"whether, under the facts of this case, [the defendants], who are private
parties, may be appropriately characterized as 'state actors.'" Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982). And that depends, not just
on the regulatory framework, but the conduct that is alleged to constitute
state action.
The Supreme Court's decision in Blum v. Yaretsky is instructive: the
defendants were private nursing homes that were reimbursed by Medicaid
for the reasonable cost of health care services provided to Medicaid patients.
457 U.S. 991, 993-94 (1982). Each nursing home was required by federal
regulations to establish a utilization review committee to decide whether
patients were receiving the appropriate level of care, and to decide whether
they should be discharged or transferred to a facility with a different level of
care. Id. at 994-95. The plaintiffs were patients whom a committee had
decided should be transferred to facilities with a lower level of care. Id. at
995. They alleged that their Due Process rights had been violated by the
failure to provide them with "adequate notice either of [committee] decisions
and the reasons supporting them or of their right to an administrative
hearing to challenge those decisions." Id. at 996.

- 23 -

But the Supreme Court found that the decisions at issue weren't "state
action" for constitutional purposes. Id. at 1012. In the Court's view, while
regulations required the nursing homes to try and transfer patients to an
appropriate level of care—and imposed penalties on nursing homes that
failed to do so—their ultimate decision was a medical judgment made by a
private party. Id. at 1008. Nor did the state's decision whether to approve or
disapprove continued Medicaid payments after a change constitute approval
or disapproval of that decision. And the fact that nearly all the patients in the
nursing homes had their expenses paid by the state did not make the state a
"joint participant" in discharge and transfer of Medicaid patients, even in
conjunction with state licensing and regulation. Id. at 1010.
The Court explained that "privately owned enterprises providing
services that the State would not necessarily provide, even though they are
extensively regulated, do not fall within the ambit" of caselaw finding state
action where there was a symbiotic relationship between the private actor
and the state. Id. at 1011 (citing Burton v. Wilmington Parking Auth., 365
U.S. 715 (1961)). "That programs undertaken by the State result in
substantial funding of the activities of a private entity is no more persuasive
than the fact of regulation of such an entity in demonstrating that the State
is responsible for decisions made by the entity in the course of its business."
Id. Nor, the Court said, did nursing homes provide a function that had
traditionally been the exclusive prerogative of the state. Id. "[D]ecisions made
in the day-to-day administration of a nursing home[,]" the Court said, are not
"the kind of decisions traditionally and exclusively made by the sovereign for
and on behalf of the public." Id. at 1012.
And when Wang Anderson's complaint is examined with those
principles in mind, it becomes apparent that the actions complained of were

- 24 -

parental decisions, not state action. To begin with, the allegations themselves
are sparse, when facts relating solely to X.C.W.'s dismissed claims are
disregarded. Wang Anderson repeatedly alleges that Derr, Reid-Hansen,
Hansen, and Anderson failed to properly monitor, supervise, or provide care
and support for X.C.W. and/or Y.C.W.—but those allegations do not support a
claim for relief that Wang Anderson has standing to assert. See filing 154 at
48, 53-54, 84-86, 89, 91, 105, 108-11, 116, 120. Wang Anderson also alleges
that Reid-Hansen made false reports about X.C.W.'s response to visitation
with their father. Filing 154 at 103. But, in the context of this case, it is not
clear how that allegation connects to a violation of Wang Anderson's rights.
Other allegations do implicate Wang Anderson's asserted rights, such
as allegedly failing to arrange visitation or family therapy. Filing 154 at 63,
88, 96, 106, 111, 120-21. But nothing is alleged to connect those actions to the
state, as opposed to routine, discretionary child care decisions. The closest
Wang Anderson comes is when she alleges that
Derr, Hansen, and Reid-Hansen were permitted to supervise and
control parental contact or communication between X.C.W. or
Y.C.W. and their parents, pursuant to unconstitutional policies,
practices, customs, or usages of NDHHS, [the Nebraska Families
Collaborative], KVC [Behavioral Healthcare Nebraska Inc.], or
Christian Heritage [Children's Home]. On information and belief,
NDHHS, NFC, KVC, or Christian Heritage were complicit in this
interference.
Filing 154 at 67. But that's the kind of conclusory, formulaic recitation of a
claim (in this instance, a Monell claim) that the Supreme Court has
instructed is "not entitled to be assumed true." Iqbal, 556 U.S. at 681. In
- 25 -

sum, Wang Anderson's complaint "does not contain any factual allegation
sufficient to plausibly suggest" that the child care decisions made by Derr,
Reid-Hansen, Hansen, and Anderson were attributable to the state. See id.
Finally, Wang Anderson alleges that Derr and Anderson
violated the substantive due process right to family integrity of
Wang Anderson, including her right to the companionship, care,
custody or management of their children, by filing a petition to
have Y.C.W. declared to be incapacitated and requesting that
they be appointed as her co-guardians without any proper basis,
and by asking the Douglas County Court to allow them to proceed
on their petition without providing any notice to Wang Anderson,
and without providing any notice to Wang Anderson of said
guardianship proceeding.
Filing 154 at 141-42. But that, again, alleges nothing to suggest that the act
of filing a petition for guardianship was attributable to the state. Nor, in fact,
does it allege an actual harm to Wang Anderson—nowhere is it alleged that
the county court acted on the petition in a way that affected Wang Anderson's
rights, and the complaint in fact clearly alleges that legal custody of X.C.W.
and Y.C.W. was placed with the NDHHS pursuant to a petition filed by the
Douglas County Attorney. Filing 154 at 44-45; see Neb. Rev. Stat. § 43-905(1).
In sum, the facts alleged would not support a finding with respect to
these defendants' conduct that the state "has exercised coercive power or has
provided such significant encouragement, either overt or covert, that the
choice must in law be deemed to be that of the State." Am. Mfrs. Mut. Ins. Co.
v. Sullivan, 526 U.S. 40, 52 (1999). "Action taken by private entities with the
mere approval or acquiescence of the State is not state action." Id. As the
- 26 -

Eighth Circuit explained at length in rejecting a claim that "state action" was
involved in a nursing home's decision to limit a resident's visitation,
if the full reach of plaintiff's argument were accepted, every
decision of a private individual with a sufficient degree of power
in fact over another's life would be "state action" reviewable by
the courts, primarily, one suspects, the federal courts, under
constitutional standards. We decline to accept such a result. The
whole history of Fourteenth Amendment jurisprudence counsels
that there is and must be a large area of private action not
subject to constitutional challenge. Much of that private action,
and nursing homes are surely one of the best examples, is
thoroughly regulated by one government or another, so the public
is hardly left without legal protection. For much the same reason,
we

reject

[the

plaintiff]'s

argument

that

the

guardians'

acquiescence in [the] decisions about [the resident]'s care
amounted to state action. If we were to agree with [the plaintiff],
the

action

of

all

executors,

administrators,

guardians,

conservators, and trustees appointed by the state courts would be
subject to oversight in § 1983 actions. We are aware of no case
that has ever so held. Many decisions in our society, right or
wrong, simply must be left to the good judgment and discretion of
private individuals, including physicians and other professionals,
subject to whatever statutes or regulations may validly be issued
by one or another level of government. In short, we agree with
the District Court that there is no "state action" in this case.

- 27 -

Hoyt v. St. Mary's Rehab. Ctr., 711 F.2d 864, 866-67 (8th Cir. 1983). The
Court finds the same to be true here: the challenged conduct of Derr, ReidHansen, Hansen, and Anderson was not "state action."
4. SECTION 20-148
Wang Anderson's complaint asserts a claim with the heading "Neb.
Rev. Stat. § 20-148 et seq. - Civil Rights" against all defendants. Filing 154 at
148. Under that heading, she asserts that the defendants deprived her of
"rights, privileges, or immunities secured by the United States Constitution
or the Constitution and laws of the State of Nebraska, and are liable to
Plaintiffs under Neb. Rev. Stat. § 20-148." Filing 154 at 148.
But § 20-148 is a procedural statute which does not create any new
substantive rights. Goolsby v. Anderson, 549 N.W.2d 153, 157 (Neb. 1996). In
other words, to the extent Wang Anderson has stated a claim under § 20-148,
that claim is wholly dependent upon, and coextensive with, the substance of
her other claims. (She has not, for instance, identified a state law claim for
which she is pursuing an alternative remedy. See Parrish v. Immanuel Med.
Ctr., 92 F.3d 727, 734 (8th Cir. 1996)).
So, Wang Anderson's § 20-148 claim is at best redundant. But in fact, it
fails to state a claim for the same reasons that her other claims fail. See
Hauschild v. Nielsen, 325 F. Supp. 2d 995, 1009 (D. Neb. 2004); Dossett v.
First State Bank, Loomis, Nebraska, 627 N.W.2d 131, 139 (Neb. 2001).
Moreover, to the extent that Wang Anderson purports to assert claims under
§ 20-148 against state actors, those claims are barred: § 20-148 "is a
procedural statute designed to allow plaintiffs to bypass administrative
procedures in discrimination actions against private employers; it does not
operate to waive sovereign immunity and has no application here." Potter v.
Bd. of Regents of the Univ. of Nebraska, 844 N.W.2d 741, 750 (Neb. 2014); see
- 28 -

Wiseman v. Keller, 358 N.W.2d 768, 771-72 (1984); Cole v. Clarke, 598
N.W.2d 768, 772 (Neb. Ct. App. 1999).
Wang Anderson has identified no § 20-148 claim that is separate
from—or fares any better than—her other claims. Accordingly, her § 20-148
claim, to the extent it is a separate claim, will be dismissed.
5. EMOTIONAL DISTRESS CLAIMS
Next, Wang Anderson advances state-law claims for negligent and
intentional infliction of emotional distress. But she has failed to state a claim
for relief under either theory. To begin with, Wang Anderson's emotional
distress claims suffer from the same deficiency as her negligence claims: on
page 149 of her complaint, she asserts that the "negligent acts or omissions of
the Defendants previously alleged herein" and the "aforementioned acts and
omissions of all Defendants" support her emotional distress claims. Filing
154 at 149. No defendant could be expected, from that, to reasonably
understand precisely what they're accused of doing. The complaint does not
provide "fair notice of what the claim is and the grounds on upon which it
rests." Twombly, 550 U.S. at 555 (quotation omitted). But each emotional
distress claim suffers from other deficiencies as well.
(a) Negligent Infliction of Emotional Distress
Where there is no impact or physical injury to the plaintiff, the plaintiff
seeking to bring an action for negligent infliction of emotional distress must
show either (1) that he or she is a reasonably foreseeable "bystander" victim
based upon an intimate familial relationship with a seriously injured victim
of the defendant's negligence or (2) that the plaintiff was a "direct victim" of
the defendant's negligence because the plaintiff was within the zone of
danger of the negligence in question. Catron v. Lewis, 712 N.W.2d 245, 248- 29 -

49 (Neb. 2006). In addition, such plaintiffs must show that their emotional
distress is medically diagnosable and significant and is so severe that no
reasonable person could have expected to endure it. Id. at 249.
Because Wang Anderson was not "immediately threatened with
physical injury," this is a "bystander" case. See id. And Wang Anderson
certainly has the requisite "marital or intimate familial relation" to the
alleged direct victims. See Hamilton v. Nestor, 659 N.W.2d 321, 327-28
(2003). But she has not alleged the required emotional distress. In order to be
recoverable, emotional distress must have been so severe that no reasonable
person could have been expected to endure it, and must be medically
diagnosable and must be of sufficient severity that it is medically significant.
Id. at 329. Wang Anderson's allegations, while sparse and conclusory, may
support medical significance: she alleges "possible adjustment disorder"
attributable to the juvenile proceeding.10 But the Nebraska Supreme Court
has set a very high bar for the severity of recoverable emotional distress, and
Wang Anderson does not clear it.
For instance, in Hamilton, the plaintiff presented evidence that he
suffered from posttraumatic stress disorder resulting from an automobile
accident in which two people had been killed. Id. at 323. But the Nebraska
Supreme Court found that the plaintiff's emotional injury "cannot, as a
matter of law, be considered so severe that no reasonable person could be
10

An "adjustment disorder" is characterized by the development of clinically significant

emotional or behavioral symptoms in response to an identifiable stressor, as evidenced by
"[m]arked distress that is out of proportion to the severity or intensity of the stressor,
taking into account the external context and the cultural factors that might influence
symptom severity and presentation" or "significant impairment in social, occupational, or
other important areas of functioning." Am. Psychiatric Ass'n, Diagnostic and Statistical
Manual of Mental Disorders 286 (5th ed. 2013).

- 30 -

expected to endure it." Id. at 330. In Andreasen v. Gomes, the Court found
that the plaintiffs' "emotional distress manifested by headaches, nightmares,
loss of sleep, and nausea," resulting from a stillborn baby allegedly caused by
the defendants' negligence, was insufficient as a matter of law to support
their emotional distress claim. 504 N.W.2d 539, 542 (Neb. 1993), disapproved
on other grounds by Darrah v. Bryan Mem'l Hosp., 571 N.W.2d 783 (Neb.
1998). "Emotional distress," the Court explained, "passes under various
names such as mental suffering, mental anguish, nervous shock, and includes
all highly unpleasant mental reactions, such as fright, horror, grief, shame,
embarrassment, anger, chagrin, disappointment, and worry. However, it is
only when emotional distress is extreme that possible liability arises." Id.
(citing Hassing v. Wortman, 333 N.W.2d 765, 768 (Neb. 1983)); see also
Restatement (Second) of Torts § 46 cmt. j (1965). And in Sell v. Mary Lanning
Mem'l Hosp. Ass'n, the plaintiff had been mistakenly told her son was dead.
498 N.W.2d 522, 523 (Neb. 1993). "Without minimizing plaintiff's apparent
and understandable heartache upon being told of her son's death," the Court
found her emotional distress insufficient as a matter of law. Id. at 525.
Wang Anderson's allegations, even if proved, are no more extreme than
the evidence which was held insufficient in Hamilton, Andreasen, and Sell.
She alleges a "possible adjustment disorder." Filing 154 at 121; see filing 154
at 31, 48. She refers to "significant distress, anxiety and depression." Filing
154 at 82. She conclusorily asserts "severe physical, psychological, mental
and emotional damage." Filing 154 at 117. And, in her most particular
allegations, she claims "extreme and highly unpleasant mental reactions,
including fright, horror, grief, shame, humiliation, embarrassment, anger,
chagrin, disappointment, worry, and nausea." Filing 154 at 149-50. But that's
just the list of possible symptoms from the Restatement, supra § 46, which

- 31 -

was mostly recapitulated in Andreasen, 504 N.W.2d at 542—a case in which
the plaintiffs' emotional distress was found to be insufficiently extreme.11 In
sum, none of Wang Anderson's allegations separate this case from a mine-run
case of mental suffering, which is insufficient to support recovery unless
conjoined with another injury.12 See Kant v. Altayar, 704 N.W.2d 537, 540-41
(Neb. 2005).
There is also a more fundamental problem: Wang Anderson's negligent
infliction of emotional distress claim is derived from the defendants' alleged
negligence with respect to X.C.W. and Y.C.W.—and under Nebraska law, "an
unemancipated minor cannot maintain an action against his parent, or any
other person standing in that relation to the minor, to recover damages for
negligence." Frey v. Blanket Corp., 582 N.W.2d 336, 341 (Neb. 1998) (cleaned
up) (citing Pullen v. Novak, 99 N.W.2d 16, 25 (Neb. 1959)). Accordingly, in
Frey, the Nebraska Supreme Court declined to extend quasi-judicial
immunity to a court-appointed guardian, reasoning that it was unnecessary
to do so because "a minor may recover in tort only for brutal, cruel, or
inhuman treatment inflicted by a parent or person standing in loco parentis"
and "the guardian cannot have such liability by virtue of the quasi-parental
nature of the guardian's duty[.]" Id. at 341-42 (quotation omitted). The same
could be said of foster parents. See Nichol v. Stass, 735 N.E.2d 582, 590 (Ill.
2000); Mitchell v. Davis, 598 So. 2d 801, 804-05 (Ala. 1992); but see Doe v.

11

Not to mention that the almost word-for-word iteration of a basic proposition of law

brings these "factual" allegations perilously close to being the sort of "formulaic recitation"
that the Supreme Court has cautioned against. See Iqbal, 556 U.S. at 681.
12

Nor, it should be noted, does she allege that her shock was, in part, a result of the

manner in which she became aware of the alleged injury to the direct victim. See Nichols v.
Busse, 503 N.W.2d 173, 181 (Neb. 1993).

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Shults-Lewis Child & Family Servs., Inc., 718 N.E.2d 738, 746 (Ind. 1999);
Mayberry v. Pryor, 374 N.W.2d 683, 689 (Mich. 1985).
Courts have disagreed on the applicability of the parental immunity
doctrine to foster parents. See id. But the Court sees no basis to distinguish
guardians and foster parents, so the Nebraska Supreme Court's decision in
Frey answers that question. There is little helpful authority on whether that
immunity extends beyond a parent's liability to a child for negligence, and
immunizes a parent from a third party's claim based on being a bystander to
the parent's negligence. But it would be peculiar to permit such a claim, the
ultimate effect of which would be to subject the parent to liability for acts to
which immunity would ordinarily apply. Cf. Pullen, 99 N.W.2d at 26.
Accordingly, the Court concludes that, even had Wang Anderson sufficiently
alleged the emotional distress necessary to support her claim, such a claim
against a foster parent is impermissible under Nebraska law.
(b) Intentional Infliction of Emotional Distress
Wang Anderson's claim of intentional infliction of emotional distress
fares no better. To recover for intentional infliction of emotional distress, a
plaintiff must prove (1) intentional or reckless conduct (2) that was so
outrageous in character and so extreme in degree as to go beyond all possible
bounds of decency and is to be regarded as atrocious and utterly intolerable
in a civilized community and (3) that the conduct caused emotional distress
so severe that no reasonable person should be expected to endure it. Roth v.
Wiese, 716 N.W.2d 419, 431 (Neb. 2006). And as a starting point, Wang
Anderson's allegations of severe emotional distress are insufficient for this
claim for the same reasons they were insufficient for her negligent infliction
of emotional distress claim.

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So too are her allegations of outrageous and extreme conduct
insufficient, at least as to these defendants. Whether conduct is extreme and
outrageous is judged on an objective standard based on all the facts and
circumstances of the particular case. Id. And Nebraska relies on the
Restatement, supra § 46. See Brandon ex rel. Estate of Brandon v. Cty. of
Richardson, 624 N.W.2d 604, 621 (Neb. 2001). The rule stated in that section
applies where the actor desires to inflict severe emotional
distress, and also where he knows that such distress is certain, or
substantially certain, to result from his conduct. It applies also
where he acts recklessly . . . in deliberate disregard of a high
degree of probability that the emotional distress will follow.
Restatement, supra § 46 cmt. i.
Wang Anderson does allege more than the "mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities that result from
living in society." Heitzman v. Thompson, 705 N.W.2d 426, 431 (Neb. 2005).
But there is still a "high hurdle for establishing outrageous conduct." Id. And
even giving Wang Anderson every reasonable inference from her allegations,
all indications here are that the defendants' conduct was not directed at
Wang Anderson—it was, rather, concerned with X.C.W. and Y.C.W., and
Wang Anderson's feelings were incidental. Nothing in the complaint
intimates that the defendants intended anything more than the duties
assigned to them by the foster care system. Cf. Twombly, 550 U.S. at 566.
That does not satisfy the Restatement criteria for when a defendant's conduct
is "intentional" or "reckless"—and, to find a claim for relief in such
allegations would again amount to imposing strict liability on caregivers for
foster children merely for doing their jobs. Simply put, the conduct alleged of
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the foster parents here is typical of most any juvenile adjudication, not
"extreme" or "outrageous."
The closest Wang Anderson comes is her allegation that in June 2014,
Derr erroneously told one of Y.C.W.'s health care providers, and Y.C.W.
herself, that the juvenile court had terminated her parents' parental rights.
But it is not at all clear how that conduct, even if intentional, contributed to
any emotional distress of Wang Anderson. Nor, for that matter, are there any
facts to suggest that Derr acted to cause Wang Anderson emotional distress,
or even with reckless disregard for her feelings. There is nothing alleged to
suggest that these incidents—even if they happened that way—were part of a
nefarious plot to hurt Wang Anderson, instead of simple mistakes or
misunderstandings. In sum, read in the context of the complaint, the
allegations Wang Anderson levels at Derr, Reid-Hansen, Hansen, and
Anderson do not describe intentional or reckless conduct that was so
outrageous in character and so extreme in degree as to go beyond all possible
bounds of decency and is to be regarded as atrocious and utterly intolerable
in a civilized community. See Roth, 716 N.W.2d at 431.
6. MOTION TO STRIKE
Finally, Reid-Hansen and Hansen move to strike the index of evidence
(filing 387) filed by Wang Anderson in opposition to their motion to dismiss.
Filing 410. They argue that because they presented a facial attack to the
sufficiency of the complaint, the Court should not consider matters beyond
the pleading. Filing 411 at 2. Wang Anderson responds that the regulations
and court documents she filed are permissible, because they are judicially
noticeable. Filing 439 at 2.
That's true at least to a point: the Court is not precluded, in reviewing
a Rule 12 motion, from taking notice of items in the public record. Levy v.
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Ohl, 477 F.3d 988, 991 (8th Cir. 2007). Court records and administrative
regulations are, at least generally, fair game. See id.; Taradejna v. Gen. Mills,
Inc., 909 F. Supp. 2d 1128, 1133 n.4 (D. Minn. 2012). But the purpose of the
juvenile court filings that Wang Anderson presents isn't clear—that is, it's
not clear whether Wang Anderson is presenting them as evidence that they
were made, or as substantive evidence of the facts they contain. That can
make a difference: public records might not be judicially noticeable when
offered for the truth of the matters asserted in them. See Whitten v. City of
Omaha, 199 F. Supp. 3d 1224, 1231 (D. Neb. 2016). And it certainly looks like
Wang Anderson is presenting some of her exhibits as substantive proof of her
allegations. See filing 386 at 28, 38, 50, 76.
But given the Court's resolution of the merits of the parties' claims, the
Court need not parse out which of Wang Anderson's exhibits are properly
judicially noticeable and which are not: because the Court has disposed of
each of Wang Anderson's claims against Reid-Hansen and Hansen on their
merits, their motion to strike is moot, and will be denied as such.
IT IS ORDERED:
1.

X.C.W.'s claims are dismissed without prejudice.

2.

The Clerk of the Court is directed to modify the case
caption with respect to Wang Anderson by striking
"Individually and on behalf of and as the 'Next Friend' of
minor X.C.W."

3.

Derr's motion to dismiss (filing 242) is granted.

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4.

Reid-Hansen and Hansen's motion to dismiss (filing 251) is
granted.

5.

Tina Anderson's motion to dismiss (filing 266) is granted.

6.

Reid-Hansen and Hansen's motion to strike (filing 387) is
denied as moot.

7.

Derr, Reid-Hansen, Hansen, and Tina Anderson are
terminated as parties.

Dated this 15th day of June, 2018.
BY THE COURT:

John M. Gerrard
United States District Judge

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