Wang Anderson v. The State of Nebraska et al

Filing 503

MEMORANDUM AND ORDER - that Project Harmony's motion to dismiss (filing 359 ) is granted in part and denied in part. 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 Project Harmony's motion to dismiss
(filing 359), challenging the Court's subject-matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1). See filing 360 at 3. The Court will grant that motion in
part and deny it in part.
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 sued both in her own capacity
and as "next friend" of X.C.W. Filing 154 at 2. Project Harmony is a nonprofit
corporation allegedly involved in investigating accusations that X.C.W. and
Y.C.W. had been neglected or abused by their parents. Filing 154 at 7, 43.
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. Filing 154 at 33. 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 NDHHS. 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.
Wang Anderson alleges that Suzanne Haney, M.D. "was employed by
Douglas County and/or Project Harmony as a physician," Lisa Johnson "was
employed by NDHHS, Douglas County, and/or Project Harmony as a nurse
practitioner," and Jennifer White "was employed by NDHHS and/or Project
Harmony, as a social worker." Filing 154 at 8. According to Wang Anderson,
Haney and Johnson failed to properly examine the girls, and didn't properly

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address the girls' health needs. Filing 154 at 43. And as far as the Court can
tell, Project Harmony's connection to the girls ended there.1
A juvenile proceeding was initiated in the Separate Juvenile Court of
Douglas County, Nebraska. Filing 154 at 44. The petition alleged—Wang
Anderson says wrongly—that X.C.W. and Y.C.W. had been subjected to
inappropriate discipline, not provided with safe housing, deprived of proper
parental care and support, and that Wang Anderson had been seen acting in a
manner consistent with untreated mental health needs. Filing 154 at 44-45.
An ex parte juvenile court order placed the girls in the temporary custody of
DHHS, then after a hearing, the juvenile court continued DHHS's temporary
custody. Filing 154 at 45-46.
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

1

A number of accusations are leveled at White for events that followed, but it's fairly clear

from the complaint that even if White was somehow associated with Project Harmony, she
was wearing a different hat as part of the NDHHS's dependency case.

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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 Project Harmony, Wang Anderson asserts:
•

Policy-or-custom § 1983 claims (filing 154 at 126);

•

State-law negligence claims (filing 154 at 130, 135);

•

A § 1983 claim based on violation of the "substantive due
process rights to family integrity and the parent-child
relationship" (filing 154 at 137, 142);

•

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

•

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

•

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

Project Harmony moves to dismiss those claims for lack of subject-matter
jurisdiction, pursuant to Rule 12(b)(1). Filing 360 at 3.

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STANDARD OF REVIEW
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). Project Harmony is making 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. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged. Id. 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.
DISCUSSION
Project Harmony's motion to dismiss raises only three discrete issues: (1)
whether Wang Anderson has standing to pursue relief as "next friend" of
X.C.W., (2) whether the Court should abstain pursuant to the Younger

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abstention doctrine, and (3) whether Wang Anderson's claims are barred by
the Rooker-Feldman doctrine.2 Filing 360.
The Court 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. The Court will grant Project Harmony's motion to dismiss to that
extent, for the reasons previously explained by the Court. See filing 481 at 913. Only Wang Anderson's own claims remain at issue here.
Next, Project Harmony argues that the Court should abstain from
hearing this case pursuant to the Younger abstention doctrine. Filing 360 at 57; see Younger v. Harris, 401 U.S. 37, 53-54 (1971). The Court has also already
explained why Younger is not applicable here, after the juvenile court
proceedings have terminated. Filing 487 at 5-6.
Finally, Project Harmony argues that Wang Anderson's claims are
barred by the Rooker-Feldman doctrine. Filing 360 at 8-10; see D.C. Court of
Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Tr. Co., 263 U.S. 413
(1923). The Court has addressed Rooker-Feldman arguments at length over
the course of this proceeding, and after careful consideration has rejected them.
See filing 486 at 21-23; filing 487 at 6-7; filing 490 at 8-9; filing 501 at 19-21;
see also filing 493 at 15 n.3. The Court reaches the same conclusion here,

2

The Court has also noted the suggestion in Project Harmony's reply brief that the

allegations in the complaint are insufficient to state a claim against Project Harmony. Filing
484 at 2. While there may be some force to that argument, for reasons the Court has detailed
in other orders, the Court concludes that it was newly presented in Project Harmony's reply
brief, depriving Wang Anderson of a chance to meaningfully respond. And Project Harmony's
motion was clearly asserted, exclusively, under Rule 12(b)(1). See filing 360 at 3. So, the Court
declines to consider it. See Torgeson v. Unum Life Ins. Co. of Am., 466 F. Supp. 2d 1096, 1121
(N.D. Iowa 2006). Whether Project Harmony's argument might have merit if asserted in a
Rule 12(c) motion is something the Court does not consider at this time. See Rule 12(h)(2)(B).

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because it has not been asked to review and reject the juvenile court's orders,
even if Wang Anderson's claims are inconsistent with some of the juvenile
court's conclusions. See id.
Accordingly, Project Harmony's motion to dismiss will be granted to the
extent that the Court has already dismissed X.C.W.'s claims, but the balance
of Project Harmony's motion will be denied.
IT IS ORDERED that Project Harmony's motion to dismiss (filing
359) is granted in part and denied in part.
Dated this 28th day of September, 2018.
BY THE COURT:

John M. Gerrard
United States District Judge

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