Wang Anderson v. The State of Nebraska et al

Filing 493

MEMORANDUM AND ORDER - The County Defendants' motion to dismiss (filing 221 ) is granted in part and denied in part, as set forth above. Amy Schuchman is terminated as a party. The County Defendants' motion to strike (filing 221 ) is denied. Ordered by Judge John M. Gerrard. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CATHERINE YANG WANG
ANDERSON,
4:17-CV-3073
Plaintiff,
vs.

MEMORANDUM AND ORDER

THE STATE OF NEBRASKA, et al.,
Defendants.
This matter is before the Court on the motion to dismiss and motion to
strike (filing 221) filed by Douglas County, Nebraska and Chad Miller, Mark
Gentile, Brenda Wheeler, and Amy Schuchman (collectively, the "County
Defendants"). The Court will grant the motion to dismiss in part and deny it
in part, and will deny the motion to strike.
I. 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. Douglas County is a political
subdivision of the State of Nebraska. Filing 154 at 3. Gentile was a lieutenant
with the Douglas County Sheriff's Office, and Wheeler and Miller were sheriff's
office deputies. Filing 154 at 6-7. Miller was also the school resource officer at
Millard West High School. Filing 154 at 7. Schuchman was a deputy Douglas
County Attorney. Filing 154 at 19.

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, Millard West, because Y.C.W.
was permitted and encouraged to confide in him about personal problems.
Filing 154 at 24-28. According to the teacher, Y.C.W. told him she had sexual
identity issues. Filing 154 at 35.
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. Shortly after that, Miller spoke to Y.C.W. about her report. Filing
154 at 28. Miller and another deputy went to Wang Anderson's home and spoke
with her, but didn't enter the home. Filing 154 at 28-29. They didn't tell Wang
Anderson about Y.C.W.'s reported threat. Filing 154 at 29.
On the same day, Gentile and another officer went to Wang Anderson's
home to make contact with X.C.W., who was home. Filing 154 at 29. Gentile
spoke to X.C.W. privately, and according to Wang Anderson, X.C.W. told
Gentile that she had heard no threat to Y.C.W., and speculated that Y.C.W.
might have made up the report. Filing 154 at 29. Gentile specifically asked
X.C.W. whether she felt unsafe with Wang Anderson, and X.C.W. said she
didn't. Filing 154 at 29. Wang Anderson alleges that she reported concerns
about Y.C.W.'s friendship with her teacher to Gentile, but that Gentile did not
investigate those concerns. Filing 154 at 30.
Gentile asked Wang Anderson to go to Millard West to speak with a
guidance counselor and Y.C.W., among others. Filing 154 at 30. At that
meeting, Miller told Wang Anderson that Y.C.W. had reported being

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threatened. Filing 154 at 30. Wang Anderson denied the accusation. Filing 154
at 30. Wang Anderson also communicated her concerns about Y.C.W.'s
relationship with her teacher to Miller, who—according to Wang Anderson—
also failed to investigate. Filing 154 at 30, 33.
Based on Y.C.W.'s report that she didn't feel safe going home, Gentile
and Miller removed Y.C.W. from Wang Anderson's residence and took her to
Project Harmony for a temporary foster placement. Filing 154 at 33. Gentile
had also observed that when Wang Anderson answered the door, she had been
wearing a rubber glove, and suspected that Wang Anderson might be mentally
ill. Filing 154 at 29-31. Investigators from the Nebraska Department of Health
and Human Services (DHHS) went to Wang Anderson's residence that
evening, and reported hazardous conditions. Filing 154 at 35.
So, after X.C.W. went to school the next day, Wheeler placed X.C.W. in
the temporary custody of DHHS. Filing 154 at 36. Wheeler and a DHHS case
worker went to Wang Anderson's house, and Wheeler took Y.C.W.'s cell phone
for evidentiary purposes. Filing 154 at 35. X.C.W. and Y.C.W. were placed with
the same foster parent, and both girls were evaluated at Project Harmony.
Filing 154 at 34, 37, 43. Wang Anderson alleges that the evaluations were
inadequate, and that no evidence was generated of any injuries—but, if there
was such evidence, it was unlawfully concealed by various defendants,
including Douglas County and Schuchman. Filing 154 at 43.
A juvenile proceeding was initiated in the Separate Juvenile Court of
Douglas County, Nebraska, by a deputy Douglas County Attorney. Filing 154
at 44. The petition alleged—Wang Anderson says wrongly—that X.C.W. and
Y.C.W. had been subjected to inappropriate discipline, not provided with safe
housing, deprived of proper parental care and support, and that Wang
Anderson had been seen acting in a manner consistent with untreated mental

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health needs. Filing 154 at 44-45. Specifically, Wang Anderson asserts that
Wheeler and Miller failed to disclose to the juvenile court that X.C.W. did not
feel unsafe at home. Filing 154 at 37. An ex parte juvenile court order placed
the girls in the temporary custody of DHHS, then after a hearing, the juvenile
court continued DHHS's temporary custody. Filing 154 at 45-46. Wang
Anderson blames Douglas County, in part, for the alleged violation of her right
to due process occasioned by the delay in holding a hearing. Filing 154 at 47.
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 treating eating disorders. Filing 154 at
54. She was partially hospitalized—her time was split between the hospital
and her foster home. Filing 154 at 54-55. On the suggestion of the girls'
therapists, DHHS recommended to the juvenile court that all parental
visitation be therapeutic, and the juvenile court agreed. Filing 154 at 57. But
visitation between Wang Anderson and Y.C.W. was suspended. Filing 154 at
57. Wang Anderson alleges that Y.C.W.'s therapists approved "certain ways of
life, behaviors or actions that were inappropriate, morally corruptive, harmful
and detrimental. . . ." Filing 154 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. Schuchman filed those petitions. Filing 154 at 75. The juvenile court
dismissed the termination petitions, but the girls were finally adjudicated as

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being juveniles within the meaning of Neb. Rev. Stat. § 43-247(3). Filing 154
at 81. And visitation was ordered. Filing 154 at 82.
Schuchman filed a notice of appeal from the adjudication, assigning error
to the juvenile court's dismissal of the termination allegations. Filing 154 at
87; filing 222-5 at 31-32. The juvenile court later entered a "permanency
planning order" that established a permanency objective of reunification,
although the order also placed strict limitations on Wang Anderson's contact
with the children. Filing 154 at 92. Schuchman also appealed that order,
assigning error to the juvenile court's appointment of counsel for Wang without
a finding of indigency. Filing 154 at 93; filing 222-7 at 6.
The Nebraska Court of Appeals eventually affirmed the permanency
planning order, holding that the State had waived its argument with respect
to appointment of counsel for Wang by not raising it in the trial court. Filing
222-7 at 7-8.1 The court also affirmed the adjudication order. Filing 222-5 at
42. The court held that it was "clear that the State proved by a preponderance
of the evidence" that Wang Anderson had been "subjecting [X.C.W. and Y.C.W.]
to dangerous and inappropriate discipline, failing to provide proper parental
care and support for [X.C.W. and Y.C.W.], and . . . observed to be acting in a
manner consistent with untreated mental health needs." Filing 222-5 at 36.
But, the court explained, "parental rights should be terminated only in the
absence of any reasonable alternative and as the last resort." Filing 222-5 at
42 (cleaned up). And, the court found, the "point of last resort" had not been
reached in the case. Filing 222-5 at 42.
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
1

The Court may take judicial notice of public records without converting a motion to dismiss

to a motion for summary judgment. Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007).

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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.
Sometimes, X.C.W.'s foster parents were unable to take her to
Children's, so transportation was provided by Camelot Transportation. Filing
154 at 89. She rode with other passengers, some adult men. Filing 154 at 89.
According to Wang Anderson, X.C.W. was "lured, sexually abused and sexually
exploited" by another passenger. Filing 154 at 90. Or, to be more specific, a
juvenile court filing indicates that the two had exchanged telephone numbers
and texted one another, and eventually X.C.W. sent him a nude picture of
herself and expressed romantic feelings toward him. Filing 154 at 90.
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
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 her
previous foster placement. Filing 154 at 102. She was not, over Wang
Anderson's objection, placed with relatives, despite a rule Wang Anderson says
should have preferred such a placement. Filing 154 at 100. Then, X.C.W. was
permitted to attend a Project Everlast meeting at which, Wang Anderson
alleges, X.C.W. was again "lured and sexually assaulted or sexually exploited

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by an unknown adult male during and after the lunch hour." Filing 154 at 10809. 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 to educate and protect her."
Filing 154 at 119. But the therapist asked Wang Anderson to leave, Wang
Anderson alleges, instead of "assist[ing] Wang Anderson in discussing this
important and germane topic with X.C.W." Filing 154 at 119. Then, Wang
Anderson alleges, the therapist "departed from the therapeutic standard of
care" by, allegedly, making "suggestions to X.C.W. regarding how to safely or
legally engage in prostitution, shortly after X.C.W. had been sold for money."
Filing 154 at 119.
Meanwhile, X.C.W. was allowed by her foster parents—who lived in
Blair, Nebraska—to work part-time in a Blair restaurant. Filing 154 at 11516. Sometimes she walked to and from work. Filing 154 at 115. Wang Anderson
complained to various authorities about instances in which X.C.W. was seen
"scantily dressed," and she alleges that various defendants ignored "the attire
X.C.W. was permitted . . . to wear" by her foster parents. Filing 154 at 115-16.
And according to Wang Anderson, X.C.W. arranged to be picked up by a man
who, again, "sexually abused and exploited" her. Filing 154 at 115-16.
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

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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 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 13137, 148-50.
Specifically, as to the County Defendants, Wang Anderson asserts:
1.

A § 1983 claim premised on 4th and 14th Amendment violations
against Wheeler, Miller, and Gentile (filing 154 at 124-26);2

2

Although Wang Anderson did not specifically identify Gentile in the heading for this claim,

filing 154 at 124, Gentile was expressly targeted by its supporting allegations, filing 154 at
124-26, so the Court assumes his omission from the heading was an oversight.

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2.

Policy-or-custom claims (Monell claims) against Douglas County
(filing 154 at 126);

3.

State-law negligence claims against all defendants (filing 154 at
130);

4.

A § 1983 claim based on violation of the "substantive due process
rights to family integrity and the parent-child relationship"
against all "Individual Defendants" (filing 154 at 137);

5.

A § 1983 claim based on deliberate indifference to X.C.W.'s serious
health and safety needs against all "Individual Defendants" (filing
154 at 142-43);

6.

A § 1983 claim based on "retaliation for protected activity" against
Douglas County, Wheeler, Gentile, and Miller (filing 154 at 143);

7.

A discrimination claim pursuant to 42 U.S.C. § 2000d against
Wheeler and Gentile (filing 154 at 145);

8.

Section 20-148 "civil rights" claims against all defendants (filing
154 at 148);

9.

Negligent and intentional infliction of emotional distress claims
against all defendants (filing 154 at 149);

10.

A § 1983 claim based on violation of 42 U.S.C. § 621 et seq. against
Douglas County (filing 154 at 150); and

11.

A § 1983 claim based on violation of 42 U.S.C. § 670 et seq. against
Douglas County (filing 154 at 153).

The County Defendants move to dismiss all those claims except the Monell
claims pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Filing 221.

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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.
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). The County Defendants are advancing a "facial
attack" to subject matter jurisdiction, based on the pleadings or documents
that are judicially noticeable. 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

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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.
III. DISCUSSION
Before addressing the parties' arguments claim-by-claim, the Court
reiterates one of its previous holdings: the Court has already held that Wang
Anderson could not assert claims on X.C.W.'s behalf, and dismissed X.C.W.'s
claims without prejudice. Filing 481 at 9-13, 36. Many of the claims asserted
against these movants are premised on the alleged breach of their duties to
X.C.W., and those claims have been dismissed, for the reasons previously
explained by the Court. Filing 481 at 9-13. Only Wang Anderson's own claims
remain at issue here.
1. 42 U.S.C. § 1983 - UNLAWFUL SEIZURE AND FAMILIAL ASSOCIATION
The first of Wang Anderson's claims asserted against the County
Defendants—specifically, Wheeler, Miller, and Gentile—is a constitutional
claim premised on "procedural due process, unlawful seizure, and familial
association." Filing 154 at 124. Essentially, Wang Anderson claims that
X.C.W.'s initial removal from her home was unconstitutional. See filing 154 at
125. The County Defendants argue that that Wang Anderson's claims are
barred by Heck v. Humphrey, 512 U.S. 477 (1994). Filing 223 at 16.
In Heck, the Supreme Court held that
when a state prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the plaintiff
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would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has
already been invalidated. But if the district court determines that
the plaintiff's action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the
plaintiff, the action should be allowed to proceed, in the absence of
some other bar to the suit.
512 U.S. at 487 (emphasis in original) (footnotes omitted).
Thus, in order to recover damages for an allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a plaintiff must
prove that the conviction or sentence has been reversed on direct appeal,
declared invalid by an appropriate state tribunal, or called into question by a
federal court's issuance of a writ of habeas corpus. Id. at 486-87. This has come
to be known as the "favorable termination" requirement of Heck. See Marlowe
v. Fabian, 676 F.3d 743, 745 (8th Cir. 2012).
The County Defendants argue that Wang Anderson's constitutional
claims are Heck-barred as a result of the juvenile court proceedings. The Court
is not persuaded. Heck bars a § 1983 action where the suit would necessarily
imply the invalidity of the plaintiff's "conviction or sentence." 512 U.S. at 487.
But what "conviction or sentence" is at issue here? The County Defendants rely
on the adjudication and the permanency planning order, each of which were
appealed to the Nebraska Court of Appeals—but each of those orders was
based at least in part on evidence generated after X.C.W. was initially removed
from Wang Anderson's home.

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A careful examination of Heck is instructive. The Supreme Court
expressly noted in Heck that "if the district court determines that the plaintiff's
action, even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action should be
allowed to proceed, in the absence of some other bar to the suit." Id. at 487.
The example the Heck Court provided was that "a suit for damages
attributable to an allegedly unreasonable search may lie even if the challenged
search produced evidence that was introduced in a state criminal trial
resulting in the § 1983 plaintiff's still-outstanding conviction." Id. at 487 n.7.
"Because of doctrines like independent source and inevitable discovery, and
especially harmless error," the Supreme Court explained, "such a § 1983
action, even if successful, would not necessarily imply that the plaintiff's
conviction was unlawful." Id. The Supreme Court was "careful in Heck to stress
the importance of the term 'necessarily.'" Nelson v. Campbell, 541 U.S. 637,
647 (2004); accord Skinner v. Switzer, 562 U.S. 521, 534 (2011). So, generally,
plaintiffs can recover damages proximately caused by a Fourth Amendment
violation. Cty. of Los Angeles, Calif. v. Mendez, 137 S. Ct. 1539, 1548 (2017)
The Court sees little reason, in this context, to distinguish between an
unlawful search and an unlawful seizure: the fact that evidence may later have
been generated to justify a juvenile adjudication does not mean that sufficient
cause existed for seizure at the outset, and so a claim that the initial seizure
was unlawful does not necessarily imply that the subsequent adjudication was
invalid. See Eidson v. State of Tennessee Dep't of Children's Servs., 510 F.3d
631, 639-40 (6th Cir. 2007); see also Moore v. Sims, 200 F.3d 1170, 1171-72 (8th
Cir. 2000); see generally Hughes v. Lott, 350 F.3d 1157, 1160-61 (11th Cir.
2003); cf. In re Interest of Noah B., 891 N.W.2d 109, 124 (Neb. 2017) (holding
that the doctrine of claim preclusion should not be strictly applied in abuse and

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neglect cases when doing so would fail to protect children from continuing
abuse or neglect, even where new allegations in a supplemental petition were
known to the State and could have been raised as grounds for a previous
adjudication); In re Interest of R.G., 470 N.W.2d 780, 791 (Neb. 1991),
disapproved on other grounds by O'Connor v. Kaufman, 582 N.W.2d 350, 355
(Neb. 1998) (insufficient evidence to support emergency detention does not
deprive juvenile court of jurisdiction where evidence at later hearing is
sufficient to support continued detention); In re Damien S., 815 N.W.2d 648,
655 (Neb. Ct. App. 2012) (decisions at detention hearing are only temporary as
detention order will be revisited at adjudication hearing).
Moreover, Heck was premised on statutory interpretation: the Supreme
Court held that § 1983 was unavailable where a criminal conviction was extant
because "Congress [had] determined that habeas corpus is the appropriate
remedy for state prisoners attacking the validity of the fact or length of their
confinement, and that specific determination must override the general terms
of § 1983." 512 U.S. at 482; accord Wallace v. Kato, 549 U.S. 384, 392 (2007).
That rationale has little application in the context of a juvenile neglect
proceeding, where federal habeas relief is unavailable to challenge the juvenile
court's rulings. See Lehman v. Lycoming Cty. Children's Servs. Agency, 458
U.S. 502, 508-16 (1982); United States ex rel. Mueller v. Missouri Div. of Family
Servs., 123 F.3d 1021, 1023-24 (8th Cir. 1997); Amerson v. Iowa, Dep't of
Human Servs. by Palmer, 59 F.3d 92, 94-95 (8th Cir. 1995).
The County Defendants cite no authority directly supporting the
proposition that a juvenile adjudication based on allegations of neglect can bar
a subsequent § 1983 action based on the initial removal, and concede that they
are asking the Court to extend Heck beyond its holding. See filing 223 at 17.

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The Court declines that invitation, and concludes that Wang Anderson's claims
based on X.C.W.'s emergency removal from her home are not Heck-barred.3
And, so far as the Court can tell, the County Defendants' Heck v.
Humphrey argument is the only argument in their brief directed at Wang
Anderson's first claim for relief. See filing 223 at 19-20. That said, with
X.C.W.'s claim having been dismissed, it's hard to tell the difference between
Wang Anderson's first claim for relief ("sever[ing] familial association without
due process of law under the Fourth Amendment") and her fourth claim for
relief (violating the "substantive due process right to family integrity"). Filing
154 at 125, 137. Nor is it entirely clear to the Court what a Fourth Amendment
"familial association" claim would even entail. See generally Doe v. Heck, 327
F.3d 492, 518 n.23 (7th Cir. 2003) (explaining difference between Fourth
Amendment seizure and Fourteenth Amendment familial relations claim). But
the Court sees no need to dismiss Wang Anderson's first claim for relief as
duplicative in the absence of any argument directed squarely at that issue.
Accordingly, that claim may proceed against Wheeler, Miller, and Gentile.4

3

The Court notes that the County Defendants appear to back away from Heck in their reply

brief, instead making passing reference to the Rooker-Feldman doctrine, and more generally
issue or claim preclusion, along with a discussion of the Full Faith and Credit Clause. Filing
380 at 6-12. Rooker-Feldman isn't applicable here, for much the same reason Heck isn't. See
filing 487 at 6-7. And the Court isn't persuaded to wade into whether and how issue or claim
preclusion applies to some or all of Wang Anderson's claims when that argument was raised
only in the County Defendants' reply brief, depriving Wang Anderson of a chance to
meaningfully respond. See Torgeson v. Unum Life Ins. Co. of Am., 466 F. Supp. 2d 1096, 1121
(N.D. Iowa 2006).
4

Each individual defendant was sued in both an official and individual capacity, but the

Court's ruling will not distinguish between those capacities because it wasn't invited to do so
by the pleadings or the briefing. But because a claim against an official in an official capacity

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2. MONELL CLAIMS
Douglas County does not ask for Wang Anderson's second claim for relief
to be dismissed. Accordingly, it will proceed.5
3. STATE-LAW NEGLIGENCE CLAIMS
Next, the County Defendants argue, with respect to Wang Anderson's
state-law negligence claims (and, in fact, with respect to all her state-law
claims) that they are barred by Wang Anderson's failure to plead compliance
with the requirements of the Nebraska Political Subdivisions Tort Claims Act,
Neb. Rev. Stat. § 13-901 et seq. (PSTCA). Filing 223 at 8-13; see filing 154 at
130, 148-49. Under Nebraska law, the filing or presentment of a claim to the
appropriate political subdivision, while it is not a jurisdictional prerequisite,
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.
is the same as a claim against the entity for which the official is an agent, and prospective
injunctive relief is off the table, the Monell claims and the individual capacity claims are
really the only ones that matter. See Kentucky v. Graham, 473 U.S. 159, 165, 167 n.14 (1985).
5

The Court notes, for the sake of clarity, that Wang Anderson also asserts policy-or-custom

claims against Douglas County under the heading of her fourth claim for relief, filing 154 at
142, despite that claim expressly being asserted only "Against all Individual Defendants,"
filing 154 at 137. It's not clear how "Individual Defendants" are distinguished from any other
defendants if Douglas County is an "individual defendant"—providing yet another example
of how Wang Anderson's shotgun pleading makes it difficult to tell who's being sued for what.

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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 22.6
But the County Defendants also argue with respect to Wang Anderson's
negligence claims—and again, in fact, with respect to all her state-law claims—
that Schuchman is entitled to quasi-judicial immunity. Filing 223 at 14-16.
With that, the Court agrees. Under Nebraska law, a public prosecutor, acting
within the general scope of her official authority in making a determination
whether to file a criminal prosecution, is exercising a quasi-judicial and
discretionary function, and where she acts in good faith she is immune from
suit for an erroneous or negligent determination. Koch v. Grimminger, 223
N.W.2d 833, 837 (Neb. 1974). And that immunity extends to the decisions of a
county attorney in the filing of juvenile petitions. Koepf v. York Cty., 251
N.W.2d 866, 870 (Neb. 1977); accord Gallion v. Woytassek, 504 N.W.2d 76, 83
(Neb. 1993); cf. Billups v. Scott, 571 N.W.2d 603, 607 (Neb. 1997).
All of Wang Anderson's allegations against Schuchman involve her
performance of her duties—her filing of a petition for termination of parental
rights, and her prosecution of appeals to the Nebraska Court of Appeals. Each

6

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).

- 17 -

of those allegations falls in the heartland of state-law quasi-judicial immunity.
It is true that such immunity is limited: it "would not protect a prosecutor who,
knowing that a particular charge is groundless in law or in fact, nonetheless
intentionally files a charge and thus acts through a corrupt motive." Koch, 223
N.W.2d at 714. But Wang Anderson has not alleged that Schuchman acted in
bad faith, see Koepf, 251 N.W.2d at 869, nor has she alleged the ultimate facts
from which such a conclusion could be inferred, see Koch, 223 N.W.2d at 714.
So, she is entitled to state-law quasi-judicial immunity.
There is also a broader problem: as the Court has previously explained
at some length, Wang Anderson's negligence claims fail to satisfy Rule 8(a),
and the complaint fails to state a negligence claim against any defendant
because it does not present any of the defendants fair notice of which
allegations are made against them. Filing 481 at 13-14. "In sum," the Court
found, "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." Filing 481 at 17. That finding applies with equal force
here. Accordingly, the Court will dismiss Wang Anderson's state-law
negligence claims.
4. 42 U.S.C. § 1983 - DUE PROCESS RIGHT TO FAMILY INTEGRITY
Wang Anderson's next claim is premised on the alleged violation of her
"substantive due process rights to family integrity and the parent-child
relationship" by "all Individual Defendants." Filing 154 at 137. That
apparently includes Douglas County, too. See supra n.5. The County
Defendants' primary argument is that this claim is Heck-barred. Filing 223 at
21-22. The Court rejects this argument for the reasons stated above.
But the County Defendants also argue that Schuchman is entitled to
prosecutorial immunity from this claim, and from Wang Anderson's other
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federal-law claims—and with that, for many of the same reasons explained
above, the Court agrees. Prosecutors are absolutely immune from liability
under § 1983 for their conduct in initiating a prosecution and in presenting the
State's case insofar as that conduct is intimately associated with the judicial
phase of the criminal process. Woodworth v. Hulshof, 891 F.3d 1083, 1089 (8th
Cir. 2018). And that immunity extends to initiating juvenile dependency and
neglect proceedings. Martin v. Aubuchon, 623 F.2d 1282, 1285 (8th Cir. 1980);
accord Myers v. Morris, 810 F.2d 1437, 1452 (8th Cir. 1987), abrogated on other
grounds by Burns v. Reed, 111 S. Ct. 1934 (1991).
So, Schuchman is entitled to absolute prosecutorial immunity for the
allegations against her in Wang Anderson's complaint, and the Court will
dismiss the federal claims against her. Wang Anderson's fourth claim for relief
may proceed against the other County Defendants.
5. 42 U.S.C. § 1983 - DELIBERATE INDIFFERENCE TO HEALTH AND SAFETY
Next, Wang Anderson alleges that "All Individual Defendants" were
deliberately indifferent to X.C.W.'s serious health and safety needs, in violation
of the Due Process Clause of the Fourteenth Amendment. This claim will be
dismissed for several reasons.
First, although Wang Anderson makes reference to "Plaintiffs" suffering
injury, filing 154 at 143, it's clear that this claim is premised wholly on X.C.W.'s
constitutional rights. Accordingly, it stands dismissed because X.C.W. is not
prosecuting it herself. Additionally, for the reasons explained above,
Schuchman is entitled to prosecutorial immunity from this claim.
Finally, Wang Anderson's factual allegations simply do not state a claim
against the County Defendants on these grounds: there are no factual
allegations to suggest that any of the County Defendants were indifferent to
X.C.W.'s needs—much less the required allegations of "official conduct or
- 19 -

inaction . . . so egregious or outrageous that it is conscience-shocking." See
James ex rel. James v. Friend, 458 F.3d 726, 730 (8th Cir. 2006). Wang
Anderson relies on a theory that the County Defendants failed to protect
X.C.W. by removing her from her mother's care, and were deliberately
indifferent to her "medical need" not to be separated from her mother. Filing
351 at 40. But even if there was a risk of harm associated with X.C.W.'s
removal from the home, nothing alleged by Wang Anderson would permit a
reasonable inference that the County Defendants "were aware of facts from
which an inference could be drawn that a substantial risk of serious harm
existed" or that they "actually drew that inference." See id.
Accordingly, this claim will be dismissed as to all the County Defendants.
6. 42 U.S.C. § 1983 - RETALIATION FOR PROTECTED ACTIVITY
Wang Anderson's next claim for relief presents a moving target for the
County Defendants—or specifically, Douglas County, Wheeler, Gentile, and
Miller. (Schuchman isn't targeted by this claim.)
In Wang Anderson's brief, she represents her theory as being that the
County Defendants "retaliated against her for exercising her First Amendment
right to free speech by making reports to them about harassment by her
neighbors and regarding her concerns about Y.C.W.'s relationship with [her
teacher]." Filing 351 at 41. The problem is that nothing in Wang Anderson's
complaint remotely resembles that theory: the complaint clearly sets forth a
claim that Wang Anderson was retaliated against for asserting her rights in
the juvenile court proceedings. See filing 154 at 143-44. And of course, Wheeler,
Gentile, and Miller were only involved in the initial removal of Y.C.W. and
X.C.W. from the home, and they aren't alleged to have had anything to do with
the case after that. So, the complaint plainly fails to state a claim as to them.

- 20 -

Without Wheeler, Gentile, and Miller, there's nothing to connect Douglas
County with the claim either. And in any event, Wang Anderson hasn't
identified any policy or custom of Douglas County related to any alleged
retaliation. See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658,
694-95 (1978). So, the Court agrees with the County Defendants that this claim
is insufficiently pleaded. See filing 223 at 24.
7. 42 U.S.C. § 2000D DISCRIMINATION CLAIM
Next, Wang Anderson claims that Wheeler and Gentile discriminated
against her in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §
2000d, which prohibits discrimination in federally assisted programs based on
race, color, or national origin. She claims that Wheeler and Gentile did not
conduct a fair investigation "and failed to consider and recognize that the
characteristics of Wang Anderson and her residence observed by these
Defendants were consistent with the traditions, customs, and mores of Chinese
culture." Filing 154 at 146.
But § 2000d "requires a plaintiff to show that a forbidden reason was the
but-for cause of a denial of benefits." Abdull v. Lovaas Inst. for Early
Intervention Midwest, 819 F.3d 430, 433 (8th Cir. 2016). Only allegations of
intentional discrimination are sufficient. Alexander v. Sandoval, 532 U.S. 275,
280 (2001); Mumid v. Abraham Lincoln High Sch., 618 F.3d 789, 794 (8th Cir.
2010); see Thompson By & Through Buckhanon v. Bd. of Special Sch. Dist. No.
1, 144 F.3d 574, 581 (8th Cir. 1998). Wang Anderson's conclusory allegation
that "[o]n information and belief, said Defendants acted with malice," filing
154 at 147, is not enough to "plausibly suggest" a "discriminatory state of
mind," see Iqbal, 556 U.S. at 683.
Furthermore, as the County Defendants argue, courts have uniformly
concluded that individual employees can't be personally liable under Title VI,
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because they weren't the entities receiving federal assistance. See Rodgers v.
Univ. of Missouri Bd. of Curators, 56 F. Supp. 3d 1037, 1047 (E.D. Mo. 2014),
aff'd as modified sub nom. Rodgers v. Curators of Univ. of Missouri Sys., 634
F. App'x 598 (8th Cir. 2015); see also Shotz v. City of Plantation, Fla., 344 F.3d
1161, 1171 (11th Cir. 2003); Buchanan v. City of Bolivar, Tenn., 99 F.3d 1352,
1356 (6th Cir. 1996); Methelus v. Sch. Bd. of Collier Cty., Fla., 243 F. Supp. 3d
1266, 1282 (M.D. Fla. 2017); Brooks v. Skinner, 139 F. Supp. 3d 869, 885 (S.D.
Ohio 2015); Callum v. CVS Health Corp., 137 F. Supp. 3d 817, 844 (D.S.C.
2015); Pollard v. Georgetown Sch. Dist., 132 F. Supp. 3d 208, 229-30 (D. Mass.
2015); Faiaz v. Colgate Univ., 64 F. Supp. 3d 336, 364 (N.D.N.Y. 2014); Barnett
v. Baldwin Cty. Bd. of Educ., 60 F. Supp. 3d 1216, 1234-35 (S.D. Ala. 2014);
Delbert v. Duncan, 923 F. Supp. 2d 256, 261 (D.D.C. 2013), aff'd, No. 13-5135,
2013 WL 6222987 (D.C. Cir. Nov. 14, 2013); C.S. v. Couch, 843 F. Supp. 2d 894,
905 n.14 (N.D. Ind. 2011); Karlen ex rel. J.K. v. Westport Bd. of Educ., 638 F.
Supp. 2d 293, 302 (D. Conn. 2009); Washington v. Jackson State Univ., 532 F.
Supp. 2d 804, 811 (S.D. Miss. 2006); Kelly v. Rice, 375 F. Supp. 2d 203, 208
(S.D.N.Y. 2005); Jackson v. Univ. of New Haven, 228 F. Supp. 2d 156, 158 n.4
(D. Conn. 2002); Steel v. Alma Pub. Sch. Dist., 162 F. Supp. 2d 1083, 1085 (W.D.
Ark. 2001); Powers v. CSX Transp., Inc., 105 F. Supp. 2d 1295, 1311-12 (S.D.
Ala. 2000); Farm Labor Org. Comm. v. Ohio State Highway Patrol, 95 F. Supp.
2d 723, 741 (N.D. Ohio 2000), aff'd and remanded, 308 F.3d 523 (6th Cir. 2002);
Farmer v. Ramsay, 41 F. Supp. 2d 587, 592 (D. Md. 1999); Wright v. Butts, 953
F. Supp. 1343, 1350 (M.D. Ala. 1996); Jackson v. Katy Indep. Sch. Dist., 951 F.
Supp. 1293, 1298 (S.D. Tex. 1996); Young v. Pierce, 544 F. Supp. 1010, 1015
(E.D. Tex. 1982); cf. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257
(2009); Cox v. Sugg, 484 F.3d 1062, 1066 (8th Cir. 2007).

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The Court agrees with the overwhelming weight of authority on this
point. Wang Anderson very vaguely alleges that she was discriminated against
"under one or more programs or activities receiving Federal financial
assistance, including, without limitation, child welfare services." Filing 154 at
146. Even assuming the sufficiency of this non-specific allegation as a general
matter, the Court is unable to reasonably infer that individual officers of the
Douglas County Sheriff's Office are somehow "program[s] or activit[ies]
receiving federal financial assistance." See § 2000d.
Simply put, Wang Anderson sufficiently pleads neither intentional
discrimination nor that Wheeler and Gentile are proper defendants. So, this
claim will be dismissed as to them.
8. SECTION 20-148
The Court has previously explained why § 20-148 provides no claim for
Wang Anderson. Filing 481 at 28-29. That conclusion applies with even more
force to the County Defendants: § 20-148 expressly excludes "any political
subdivision," and does not reach individuals acting in their capacities as public
officials. Cole v. Clarke, 598 N.W.2d 768, 772 (Neb. Ct. App. 1999); see Potter
v. Bd. of Regents of the Univ. of Nebraska, 844 N.W.2d 741, 750 (Neb. 2014);
Sinn v. City of Seward, 523 N.W.2d 39, 49-50 (Neb. Ct. App. 1994). This claim
will be dismissed.
9. EMOTIONAL DISTRESS CLAIMS
The Court has also previously explained that Wang Anderson's
emotional distress claims do not satisfy Rule 8(a), and she has not alleged the
required degree of emotional distress for either tort. Filing 481 at 29-33. Nor
has she alleged that these defendants engaged in conduct of the "outrageous

- 23 -

and extreme" variety necessary to prove intentional infliction of emotional
distress. See filing 481 at 34-35. These claims will also be dismissed.
10. 42 U.S.C. § 621 ET SEQ.
Wang Anderson asserts a claim against Douglas County for allegedly
violating provisions of the Stephanie Tubbs Jones Child Welfare Services
Program, 42 U.S.C. § 621 et seq. Filing 154 at 150. The stated purpose of that
program is to
promote State flexibility in the development and expansion of a
coordinated child and family services program that utilizes
community-based agencies and ensures all children are raised in
safe, loving families, by-(1) protecting and promoting the welfare of all children;
(2) preventing the neglect, abuse, or exploitation of children;
(3) supporting at-risk families through services which allow
children, where appropriate, to remain safely with their
families or return to their families in a timely manner;
(4) promoting the safety, permanence, and well-being of
children in foster care and adoptive families; and
(5) providing training, professional development and
support to ensure a well-qualified child welfare workforce.
§ 621. Douglas County contends that program doesn't create a private right of
action. Filing 223 at 26-28. The Court agrees.
Like substantive federal law itself, private rights of action to
enforce federal law must be created by Congress. The judicial task

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is to interpret the statute Congress has passed to determine
whether it displays an intent to create not just a private right but
also a private remedy. Statutory intent on this latter point is
determinative. Without it, a cause of action does not exist and
courts may not create one, no matter how desirable that might be
as a policy matter, or how compatible with the statute. Raising up
causes of action where a statute has not created them may be a
proper function for common-law courts, but not for federal
tribunals.
Alexander, 532 U.S. at 286-87 (citations and quotations omitted); see Osher v.
City of St. Louis, No. 17-2401, slip op. at 5 (8th Cir. Sept. 6, 2018).
So, to find an individually enforceable federal right, the Court must
consider whether (1) Congress intended the statutory provision to benefit the
plaintiff. (2) the asserted right is not so vague and amorphous that its
enforcement would strain judicial competence; and (3) the provision clearly
imposes a mandatory obligation upon the states. Midwest Foster Care &
Adoption Ass'n v. Kincade, 712 F.3d 1190, 1195 (8th Cir. 2013) (citing Blessing
v. Freestone, 520 U.S. 329, 340 (1997). But nothing short of an unambiguously
conferred right to support a cause of action brought under § 1983 will do. Id.
at 1196 (citing Doe v. Gonzaga, 536 U.S. 273, 283 (2002)); see Osher, slip op. at
6. It is insufficient to show merely that a particular statute intended to benefit
the putative plaintiff. Osher, slip op. at 6.
Here, Wang Anderson relies on § 622, filing 154 at 151-152, which sets
forth a detailed set of standards that a State's plan for child welfare services

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must meet in order for the State to be eligible for payment under the program.7
For instance, the State's plan must coordinate services under the plan with
other programs; describe the services to be funded and how the State plans to
improve them; recruit ethnically and racially diverse foster and adopting
families; and provide assurances to the Secretary of Health and Human
Services that it is operating a statewide information system, a case review
system, and a service program that helps children by promoting appropriate
reunification or adoption. See § 622(b)(1)-(8). The State must also, among other
things, "ensure a coordinated strategy to identify and respond to the health
care needs of children in foster care placements, including mental health and
dental health needs," outlining particular specific areas of concern. §
622(b)(15)(A).
Many of those provisions were undoubtedly intended to benefit foster
children—but the statute does not contain rights-creating language that is
phrased in terms of the persons benefited. Rather, the statute focuses on the
person regulated rather than the individuals protected, and thus creates no
implication of an intent to confer rights on a particular class of persons." See
Osher, slip op. at 6. The statute is also crowded with language such as "diligent
recruitment" that is undefined, but not susceptible to ready judicial standardsetting. See § 622(b)(7). And the Court notes that any mandate imposed by the
statute is diluted, as the Secretary's authority to enforce it is constrained if the
State is in "substantial conformity" with its requirements. See 42 U.S.C. §
1320a-2a.

7

Having found no private right of action, the Court need not consider whether or how Douglas

County—as opposed to the State DHHS—might have been subject to these requirements. See
§ 622(b)(1) (requiring a single organizational unit to be responsible for child welfare services.)

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In sum, the Court agrees with authority (particularly, post-Doe
authority) holding that § 622 creates no privately enforceable right of action.
Carson P. ex rel. Foreman v. Heineman, 240 F.R.D. 456, 542-44 (D. Neb. 2007);
see M.B. by Eggemeyer v. Corsi, No. 2:17-CV-4102, 2018 WL 327767, at *14-16
(W.D. Mo. Jan. 8, 2018); BK v. New Hampshire Dep't of Health & Human
Servs., 814 F. Supp. 2d 59, 71-72 (D.N.H. 2011); D.G. ex rel. Stricklin v. Henry,
594 F. Supp. 2d 1273, 1275-80 (N.D. Okla. 2009); Olivia Y. ex rel. Johnson v.
Barbour, 351 F. Supp. 2d 543, 556-657 (S.D. Miss. 2004); Charlie H. v.
Whitman, 83 F. Supp. 2d 476, 484-85 (D.N.J. 2000); see also Alger v. Cty. of
Albany, New York, 489 F. Supp. 2d 155, 158 (N.D.N.Y. 2006); cf. Midwest Foster
Care & Adoption Ass'n v. Kincade, 712 F.3d 1190, 1195-1200 (8th Cir. 2013);
31 Foster Children v. Bush, 329 F.3d 1255, 1268-74 (11th Cir. 2003). But see
Brian A. ex rel. Brooks v. Sundquist, 149 F. Supp. 2d 941, 949 (M.D. Tenn.
2000); Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662, 681-82 (S.D.N.Y.
1996), aff'd sub nom. Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997); Kenny
A. ex rel. Winn v. Perdue, 218 F.R.D. 277, 292 (N.D. Ga. 2003).
11. 42 U.S.C. § 670 ET SEQ.
Finally, in a similar vein, Wang Anderson alleges that Douglas County
violated provisions of 42 U.S.C. § 670 et seq., which set standards for federal
payments for foster care and adoption assistance "[f]or the purpose of enabling
each State to provide, in appropriate cases, foster care and transitional
independent living programs for children . . . , adoption assistance for children
with special needs, kinship guardianship assistance, and prevention services
or programs. . . ." § 670. Douglas County again argues that the statutes relied
upon by Wang Anderson do not create a private right of action, and again, the
Court agrees.

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Wang Anderson relies primarily upon §§ 671, 675, and 675a. Filing 154
at 154-57. Section 671 is similar to § 622, requiring a State receiving federal
funding to, among other things: establish and maintain standards for foster
homes, conduct financial audits, engage (with some exceptions) in "reasonable
efforts" to reunify families, provide for case plans and case review procedures,
investigate prospective foster parents, provide health insurance for foster
children, provide notice of a removal to extended family, enroll foster children
in school, and keep siblings together. § 671(a). Section 675 is a definitional
section, defining relevant terms such as "case plan" and "case review system."
See § 675(1) & (5). And § 675a imposes additional case plan and case review
system requirements, requiring the State to document its efforts at family
placement, ensure that the continuing propriety of a child's placement is
reviewed, and document steps taken to oversee foster parents and the child's
activities. § 675(a). The case plan for a foster child over age 14 is also required
to include a document describing the child's rights, and an acknowledgement
by the child that she was provided with a copy of the document. § 675(b).
But to the extent that any of those provisions are privately enforceable,
they're not enforceable by Wang Anderson. Most of the injuries claimed in the
complaint are injuries to X.C.W. or even Y.C.W., none of which can be asserted
by Wang Anderson. See filing 154 at 154-57. She doesn't have standing to
assert claims that X.C.W. and Y.C.W. were neglected in foster care, or that her
Chinese relatives were discriminated against. The only provision clearly
relevant to Wang Anderson's rights—the provision requiring reasonable efforts
at reunifying families—is just as clearly not privately enforceable. Suter v.
Artist M., 503 U.S. 347, 363 (1992);8 see Carson P., 240 F.R.D. at 535-45. In
8

The Court is aware of the so-called "Suter fix" enacted by Congress in the wake of that

decision. See 42 U.S.C. §§ 1320a-2 & 1320a-10. But those sections expressly preserve Suter's

- 28 -

sum, considering the principles explained at length above, the Court cannot
discern any right arising under § 670 et seq., that is assertable by Wang
Anderson, for which there is any basis to find a private right of enforcement.
IV. CONCLUSION
Accordingly, the Court will grant the County Defendants' motion to
dismiss in part, and deny it in part. Specifically, the following claims may
proceed against (some) of the County Defendants: the § 1983 unlawful seizure
claim against Wheeler, Miller, and Gentile; the Monell claims against Douglas
County; and the § 1983 family integrity claim against Wheeler, Miller, Gentile,
and Douglas County. All the other claims addressed in this memorandum and
order are dismissed, as are all the claims against Schuchman.
The County Defendants also move the Court to strike Wang Anderson's
prayer for punitive damages because, as best the Court can tell, they believe
punitive damages are not recoverable from all the parties on all of the claims
for which she seeks such damages. See filing 223 at 33-34. That's undoubtedly
so. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). But for
the Court to sharpen its blue pencil, and try to list in the margins of the
complaint which claims and defendants might allow for punitive damages,
would just add another layer of complication to an already overwrought
proceeding. And there's no reason to sort out damages at this stage.
As a final matter, the County Defendants have also moved the Court 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

holding with respect to "reasonable efforts." See id. Suter remains highly relevant here. See
Does v. Gillespie, 867 F.3d 1034, 1044-45 (8th Cir. 2017) (explaining the Suter fix); see also
Carson P., 240 F.R.D. at 537-39 (same).

- 29 -

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 claims to a jury. And it has been held, for instance,
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, 709 (1999). But that right is not
unlimited. See id. at 722. And it's not necessary to resolve that now.
So, the Court will deny the County Defendants' motion to strike Wang
Anderson's prayer for punitive damages and her jury demand, without
prejudice to reasserting those issues 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.

The County Defendants' motion to dismiss (filing 221) is
granted in part and denied in part, as set forth above.

2.

Amy Schuchman is terminated as a party.

3.

The County Defendants' motion to strike (filing 221) is
denied.

Dated this 12th day of September, 2018.
BY THE COURT:
John M. Gerrard
United States District Judge
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