Wang Anderson v. The State of Nebraska et al

Filing 498

MEMORANDUM AND ORDER - The Millard Defendants' motion to dismiss (filing 247 ) is granted. Wang Anderson's claims against the Millard Public Schools, Matthew Heys, Gregory Tiemann, and Susan Hancock are dismissed. Millard Public Schools, Matthew Heys, Gregory Tiemann, and Susan Hancock 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,
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 (filing 247) filed
by the Millard Public Schools and Matthew Heys, Gregory Tiemann, and
Susan Hancock (collectively, the Millard Defendants). The Court will grant
their motion in its entirety.
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. X.C.W. was a minor
when this case was filed, and Wang Anderson sued both in her own capacity
and as "next friend" of X.C.W. Filing 154 at 2. Millard Public Schools (MPS) is
the public school district where X.C.W. was attending school—specifically,
Millard West High School—when the events giving rise to this litigation began.
Filing 154 at 11-12, 23. Heys taught U.S. History at Millard West. Filing 154
at 11, 24. Hancock was a counselor at Millard West, and Tiemann was the
school principal. Filing 154 at 11.
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 Heys, her history teacher, because Y.C.W. was permitted and
encouraged to confide in him about personal problems.1 Filing 154 at 24-28.
Y.C.W. told Heys she had sexual identity issues. Filing 154 at 35. Heys never
attempted to communicate with Wang Anderson about Y.C.W.'s problems.
Filing 154 at 35. Heys later explained that he did not believe Wang Anderson
would understand, and that she "would be very angry and would hurt [Y.C.W.]
if she found out." Filing 154 at 36.
Wang Anderson alleges that Y.C.W. communicated confidentially with
Heys beginning in August or September 2013, by email and text message,
despite the fact that Y.C.W. was no longer in his history class. Filing 154 at 26.
Heys did not report this communication to anyone until October, when he told
a school counselor after Wang Anderson found out about it. Filing 154 at 27.
And according to Wang Anderson, Tiemann and Hancock knew about Y.C.W.'s
communication with Heys and failed to stop it, despite being asked to do so by
Wang Anderson. Filing 154 at 27. Wang Anderson also alleges that MPS has
"policies, practices, customs or usages . . . which essentially allowed teachers
to act as counselors or confidants for students, in violation of the rights of
parents . . . to direct the education and moral development of their children."
Filing 154 at 28. Wang Anderson blames Y.C.W.'s friendship with Heys for a
"breakdown" in her own relationship with Y.C.W. Filing 154 at 28.
After Wang Anderson drove Y.C.W. to school on October 8, 2013, she
went directly to Heys, who took her to Hancock to report that Wang Anderson
had threatened her. Filing 154 at 28. The Sarpy County deputy sheriff
assigned to Millard West as the school resource officer spoke to her shortly
1

This will be addressed below as well, but it bears emphasizing from the outset: the Court

finds no reason whatsoever to believe Heys had an inappropriate relationship with Y.C.W.

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thereafter. Filing 154 at 28. Officers went to Wang Anderson's home, where
they told her about Y.C.W.'s allegations. Filing 154 at 30. Wang Anderson
denied them, and law enforcement asked her to go to Millard West to meet to
a counselor about them, which she did. Filing 154 at 30.
The meeting at Millard West included Wang Anderson, Hancock, and
the resource officer, who said that Y.C.W. had made a number of reports,
including that Wang Anderson had threatened to shoot her. Filing 154 at 30.
Wang Anderson denied those reports. Filing 154 at 30. Wang Anderson
explained her own concerns about the friendship between Y.C.W. and Heys,
but according to Wang Anderson, Hancock disregarded them. Filing 154 at 30.
Based on Y.C.W.'s report that she didn't feel safe going home, sheriff's officers
removed Y.C.W. from Wang Anderson's residence and took her to Project
Harmony for a temporary foster placement. Filing 154 at 33.
One of the sheriff's deputies who made initial contact with Wang
Anderson observed that when she answered the door, she was wearing a
rubber glove, and he suspected that she might be mentally ill. Filing 154 at 2931. 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, she was also placed in the temporary custody of DHHS. Filing
154 at 36. X.C.W. and Y.C.W. were placed with the same foster parent, and
both girls were evaluated at Project Harmony. Filing 154 at 34, 37, 43.
A juvenile proceeding was initiated in the Separate Juvenile Court of
Douglas County, Nebraska. Filing 154 at 44. The petition alleged—Wang
Anderson says wrongly—that X.C.W. and Y.C.W. had been subjected to
inappropriate discipline, not provided with safe housing, deprived of proper
parental care and support, and that Wang Anderson had been seen acting in a

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manner consistent with untreated mental health needs. Filing 154 at 44-45.
An ex parte juvenile court order placed the girls in the temporary custody of
DHHS, then after a hearing, the juvenile court continued DHHS's temporary
custody. Filing 154 at 45-46.
The girls were eventually adjudicated as being juveniles within the
meaning of Neb. Rev. Stat. § 43-247(3). Filing 154 at 81. Both spent several
months in foster care and mental health treatment. See filing 154 at 60-116.
In May 2016, the juvenile court changed the permanency objective for X.C.W.
to independent living. Filing 154 at 121. She moved to another foster home,
then to an "independent living arrangement," then to a dormitory at the
University of Nebraska-Lincoln. Filing 154 at 121. But in December 2016, she
was returned to foster placement, where she remained when this complaint
was filed. Filing 154 at 123-24.
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 Anderson and her
husband 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,

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and a civil rights claim pursuant to Neb. Rev. Stat. § 20-148. Filing 154 at 13137, 148-50.
Specifically, as to these defendants, Wang Anderson asserts:
1.

A § 1983 claim premised on unlawful seizure of X.C.W. in
violation of the Fourth Amendment, against Heys, Hancock,2
and Tiemann (filing 154 at 124);

2.

Policy-or-custom claims (Monell claims) against MPS (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.

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

7.

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

The Millard Defendants move to dismiss all of Wang Anderson's claims against
them pursuant to Fed. R. Civ. P. 12(b)(6). Filing 247.

2

Hancock was omitted from the heading for this claim, filing 154 at 124, but the Court

assumes that was inadvertent, see filing 154 at 125-26.

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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.
And to survive a motion to dismiss under Fed. R. Civ. P. 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.
Determining whether a complaint states a plausible claim for relief will
require the reviewing court to draw on its judicial experience and common
sense. Id. The facts alleged must raise a reasonable expectation that discovery
will reveal evidence to substantiate the necessary elements of the plaintiff's
claim. See Twombly, 550 U.S. at 545. The court must assume the truth of the
plaintiff's factual allegations, and a well-pleaded complaint may proceed, even
if it strikes a savvy judge that actual proof of those facts is improbable, and
that recovery is very remote and unlikely. Id. at 556.

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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
Wang Anderson's first claim is premised on X.C.W.'s removal from her
home by county and state officials.3 See filing 154 at 124-26. She alleges that
Heys, Hancock, and Tiemann were somehow legally responsible for that. See
filing 154 at 125-26. It is extremely difficult to see how. Remember, it was
Y.C.W. who had confided in Heys. But Wang Anderson's first claim for relief
refers only to X.C.W.'s removal from the home.4 See filing 154 at 124-26. X.C.W.
was apparently also attending Millard West, but Wang Anderson hasn't
alleged that any of the Millard Defendants did anything with respect to X.C.W.

3

The removal of children from a parent's custody violates a constitutional right if the removal

occurs without reasonable suspicion of child abuse. Stanley v. Finnegan, 899 F.3d 623, 627
(8th Cir. 2018). But because these particular defendants had no actual hand in the removal,
the Court need not elucidate the constitutional principles underlying this claim.
4

Wang Anderson repeatedly elides this distinction in her briefing. E.g. filing 343 at 23

(defendants were "all complicit in disrupting the familial relationship and effectuating an
unreasonable seizure of Y.C.W. and X.C.W. from Wang Anderson's care.") But briefs are not
the place to fundamentally change the theory of a claim.

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Wang Anderson's argument seems to be focused on causation: had
Y.C.W. not been allowed to confide in Heys, she would not have communicated
with him and, ultimately, wouldn't have reported being threatened. See filing
343 at 20. Of course, any subsequent chain of causation was neatly severed by
the independent decision of authorities to intervene and take custody of the
children. Cf. Dedmon v. Staley, 315 F.3d 948, 950 (8th Cir. 2003). But even if
Wang Anderson had actually alleged causation, that would do nothing to show
that Heys, Hancock, or Tiemann behaved wrongfully.
Wang Anderson's theory rests on the unwarranted assumption that it's
per se inappropriate for a male high school teacher to have a friendly, trusting
relationship with a female student. She cites no authority for that proposition.
There are, unfortunately, many examples of teacher-student relationships that
breached professional boundaries. But there are no allegations that this was
one of those—and there are many more examples of young adults who've
benefited from the support and guidance of responsible teachers, coaches, and
counselors. Neither the law nor common sense require a teacher to turn away
from, or violate the trust of, a student who confides in him about a personal
crisis. There are professional duties associated with such a situation, of
course—but nothing alleged here breached those duties.
Wang Anderson has simply failed to allege any facts from which it could
be inferred that X.C.W.'s removal from home was attributable to the Millard
Defendants, nor any facts from which it could be inferred that the Millard
Defendants acted wrongfully. They had no authority to remove X.C.W. from
her home, and there is nothing to suggest they did anything to contribute to
that other than report what Y.C.W. said to them. This claim will be dismissed
as to the Millard Defendants.

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2. MONELL CLAIMS
A local government entity such as MPS may not be sued under § 1983 on
a respondeat superior theory of liability—instead, it may be found liable only
where the entity itself causes the constitutional violation at issue by executing
a policy or custom that inflicts the injury. Brewington v. Keener, No. 17-1382,
2018 WL 4117728, at *2 (8th Cir. Aug. 30, 2018). When a plaintiff can point to
an official policy that either violates federal law, or directs an employee to do
so, no evidence is needed other than a statement of the policy and its exercise
to establish a constitutional violation. Id. But when a plaintiff alleges an
unwritten or unofficial policy, there must be evidence of a practice, so
permanent and well-settled so as to constitute a custom, that existed. Id. And
in this case, Wang Anderson can point to neither an official policy nor evidence
of a customary practice.
Instead, her complaint contains a list of 12 conclusory allegations, which
she attributes collectively to literally every non-individual defendant. Filing
154 at 126-129. Wang Anderson's entire list of policies and customs is
conclusory—she has not alleged any facts suggesting the existence of an
unconstitutional policy or custom. See Crumpley-Patterson v. Trinity Lutheran
Hosp., 388 F.3d 588, 590 (8th Cir. 2004); see also Kelly v. City of Omaha, Neb.,
813 F.3d 1070, 1076 (8th Cir. 2016). And the facts of her own case are not
enough to show the existence of a policy or custom. See Ulrich v. Pope Cty., 715
F.3d 1054, 1061 (8th Cir. 2013).5 Accordingly, this claim will be dismissed.

5

Wang Anderson neither alleges nor argues, see filing 343 at 23-28, that Tiemann was a

policymaker for MPS. See Williams v. Butler, 863 F.2d 1398, 1402 (8th Cir. 1988); see also
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 736 (1989).

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3. STATE-LAW NEGLIGENCE CLAIMS
Next, the Millard 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 248 at 16-17; 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.
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

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).

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But 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. To the extent
that this claim is predicated upon X.C.W.'s removal from Wang Anderson's
home, it is subject to the same analysis set forth above in the context of Wang
Anderson's Fourth Amendment claim. But that said, it's not at all clear what
this claim is predicated upon, at least with respect to the Millard Defendants.
Part of that is due to the same "shotgun pleading" problem that's infected
the Court's discussion of nearly every issue in this case: Wang Anderson alleges
nearly everything that happened for a period of months and years, labels them
as "substantive due process" violations, and attributes all of it collectively to
all the defendants. Filing 154 at 137-42. This leads to absurd conclusions, such
as blaming the Millard Defendants for filing a petition to terminate parental
rights. See filing 154 at 139. Rule 8 alone warrants dismissal of this claim.
And in her brief, Wang Anderson focuses her claim on Heys' relationship
with Y.C.W., which she argues "alienated Wang Anderson from Y.C.W. causing
a chasm to begin to form in their relationship which grew so vast that it
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resulted in Y.C.W.'s reports of abuse or neglect which resulted in the removal
of Y.C.W. and X.C.W. from Wang Anderson's care, a violation of Wang
Anderson and X.C.W.'s right to family integrity." Filing 343 at 28. But that
suffers from the same problems as her first claim for relief: it's premised on a
supposed chain of causation that simply doesn't bear up.
Nor is there any legal support for Wang Anderson's assumption that
Heys was somehow obliged to tell Wang Anderson when Y.C.W. confided in
him.7 Heys evidently believed that Wang Anderson might be dangerous to
Y.C.W., if Wang Anderson found out about Y.C.W.'s gender identity issues.
Wang Anderson denies that, and the Court has no reason to question her denial
at this point. But there are undoubtedly many adolescents in the world who
don't have a supportive family as they struggle with complicated questions of
identity and sexuality—or, worse yet, for whom family conflict is part of their
crisis. Perhaps Heys' judgment was off about Wang Anderson, or he was misled
by what Y.C.W. told him—but even so, nothing alleged suggests the sort of
"conscience-shocking" misconduct required to prove a substantive due process
claim. See Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 816 (8th Cir. 2011);
see also B.A.B., Jr. v. Bd. of Educ. of City of St. Louis, 698 F.3d 1037, 1040 (8th
Cir. 2012).
Accordingly, the Court will dismiss Wang Anderson's substantive due
process claim as to the Millard Defendants.

7

Wang Anderson's reliance on Amanda C. ex rel. Richmond v. Case, 749 N.W.2d 429, 435

(Neb. 2008), in which a child sued a DHHS case worker for misleading her father into
surrendering his parental rights, is both factually and legally inapposite, particularly given
that the basis for liability in that case was collateral estoppel.

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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 two 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, Wang Anderson's factual allegations
simply do not state a claim against the Millard Defendants on these grounds:
there are no factual allegations to suggest that any of the Millard Defendants
were indifferent to X.C.W.'s needs—much less the required allegations of
"official conduct or inaction . . . so egregious or outrageous that it is conscienceshocking." See James ex rel. James v. Friend, 458 F.3d 726, 730 (8th Cir. 2006).
Accordingly, this claim will be dismissed as the Millard Defendants.
6. 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 Millard 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.

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7. 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
and extreme" variety necessary to prove intentional infliction of emotional
distress. See filing 481 at 34-35. These claims will also be dismissed.
IT IS ORDERED:
1.

The Millard Defendants' motion to dismiss (filing 247) is
granted.

2.

Wang Anderson's claims against the Millard Public Schools,
Matthew Heys, Gregory Tiemann, and Susan Hancock are
dismissed.

3.

Millard Public Schools, Matthew Heys, Gregory Tiemann,
and Susan Hancock are terminated as parties.

Dated this 25th day of September, 2018.
BY THE COURT:

John M. Gerrard
United States District Judge

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