Ayres v. Nebraska Department of Health & Human Services et al

Filing 39

MEMORANDUM AND ORDER that the Motion to Dismiss, ECF No. 29 , filed by Defendants Nebraska Department of Health & Human Services, Joan Weldon, Talana Sayre, Brenda Chase, and Diane Martig, is granted, in part, as follows; a. All claims against Def endant Nebraska Department of Health & Human Services are dismissed, with prejudice, and the Clerk is directed to remove the name of this Defendant from the caption; b. All claims against Defendants Joan Weldon, Brenda Chase, Diane Martig, and Tal ana Sayre in their official capacities seeking money damages are dismissed, with prejudice; c. All claims against Defendants Joan Weldon, Brenda Chase, and Diane Martig, in their individual capacities, are dismissed, without prejudice, and the Cler k will amend the caption accordingly; d. The motion is otherwise denied. 2. The Motion to Dismiss, ECF No. 31 , filed by Defendant Project Harmony, is granted; all claims against Defendant Project Harmony are dismissed, without prejudice; and th e Clerk will remove this Defendant's name from the caption. The Findings and Recommendation, ECF No. 33 , of Magistrate Judge Michael D. Nelson, are adopted in their entirety; all claims against Defendant Sarah Brock are dismissed, without p rejudice, and the Clerk will remove the name of this Defendant from the caption.Plaintiff Jill Ayres shall show cause by June 4, 2018, why Defendant Lana Sayers should not be dismissed from this action pursuant to Federal Rule of Civil Procedure 4 (m); and failure to comply with this order may result in dismissal of all claims against Lana Sayers without further notice. Defendants Joan Weldon, Brenda Chase, and Diane Martig, in their official capacities, and Talana Sayre in her official and individual capacities, will respond to the remaining claims in the Amended Complaint by June 4, 2018. Ordered by Chief Judge Laurie Smith Camp. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JILL AYRES, an individual;
Plaintiff,

4:17CV3116

vs.
NEBRASKA DEPARTMENT OF HEALTH
& HUMAN SERVICES, A Nebraska
Political Subdivision; JOAN WELDON,
in her official and individual capacities;
BRENDA CHASE, in her official and
individual capacities; TALANA SAYRE,
in her official and individual capacities;
DIANE MARTIG, in her official and
individual capacities; PROJECT
HARMONY, a Nebraska Non Profit; and
SARAH BROCK, in her official and
individual capacities; and LANA
SAYERS, in her official and individual
capacities;

MEMORANDUM
AND ORDER

Defendants.

This matter is before the Court on the Motion to Dismiss, ECF No. 29, filed by
Defendants Nebraska Department of Health & Human Services (NDHHS), Joan
Weldon, Talana Sayre, Brenda Chase, and Diane Martig (collectively, State
Defendants); the Motion to Dismiss, ECF No. 31, filed by Defendant Project Harmony;
and the Findings and Recommendation, ECF No. 33, of Magistrate Judge Michael D.
Nelson. For the reasons stated below, Project Harmony’s motion to dismiss will be
granted; the State Defendants’ motion to dismiss will be granted in part; and the
Findings and Recommendation will adopted in their entirety.

BACKGROUND
The following facts are those alleged in the Amended Complaint, ECF No. 25,
and assumed true for purposes of the Motion to Dismiss.1
Ayres is a the biological mother of an adult daughter, and the adoptive mother of
a 19-year-old daughter, identified in the Complaint as “AA,” and a six-year-old daughter,
identified as “EA.” Id. ¶ 16, Page ID 328. Both adoptive daughters were minors during
the time relevant to the conduct alleged in the Complaint. AA was removed at a young
age from her biological parents’ home and has been diagnosed with “Post Traumatic
Shock Disability,” “Reactive Attachment Disorder,” “Attention Deficit Hyperactivity
Disorder,” and Schizophrenia. Id. ¶ 17.
During the spring of 2015, “medical provider issues” caused AA to go without her
medication for “several days.” Id. ¶ 18. Page ID 328–29. During this lapse in her
medication, Ayres and several other people reported that AA’s behavior and focus
improved.

Id.

The Complaint does not state if or when Ayres resumed AA’s

medication.
In late August of 2015, Ayres found AA making homicidal threats outside the
bedroom of EA and a two-year-old foster child, named in the Amended Complaint as
“AF.” Id. ¶ 19, Page ID 329. Concerned for the children’s safety, Ayres contacted the
“Adult & Child Abuse & Neglect Hotline established by the Division of Children & Family
Services.” Id. ¶ 21. On this call, Ayres asked Hotline staff if Child Protective Services
(CPS) would intervene if she brought AA to a treatment facility and then did not pick her

1

The Court notes that, as a preamble in the Amended Complaint, Ayres quoted a website
discussing the tendency of Nebraska to remove children from parental homes relative to other states.
See ECF No. 25, Page ID 5 & n.1. The Court has neither considered this information, nor visited the
cited website, in deciding the motions to dismiss.

2

up. Id. ¶ 22, Page ID 330. The staff informed Ayres that CPS would charge her with
neglect and abandonment if she failed to pick up AA under the circumstances she
described. The staff also informed Ayres that CPS would remove her other children if
she brought AA home and that “her report had been ‘accepted’ as an intake for
investigation on a dependency case.” Id. ¶ 23. On the advice of the Hotline’s staff,
Ayres took AA to Immanuel Hospital, where she was admitted and placed on
antipsychotic medications. Id. ¶ 24. Soon after taking the medication, AA “lost touch
with her surroundings and did not know where she was.” Id.
Immanuel attempted to place her at Bryan Hospital in Lincoln, Nebraska, but
“[t]he Mental Health Board denied her admission.” Id. ¶ 25, Page ID 331. After nine
days of hospitalization, “Immanuel told Ms. Ayres she needed to pick up AA.” Id.
Ayres was unable to find placement for AA in Nebraska, having been told that AA
was “too ill” for juvenile facilities and too young for adult facilities. Id. ¶ 27. After leaving
Immanuel, AA went to stay with Ayres’s adult daughter in Kansas. Id. ¶ 28, Page ID
331–32. Two weeks later, Ayres contacted police in Kansas due to AA’s deteriorating
mental condition. Id. ¶ 29, Page ID 332. The police took AA into custody and placed
her at COMCARE Kansas, a hospital facility for youth with serious emotional
disturbances. Id. COMCARE transferred AA to the Osawatomie State Hospital, in
Osawatomie, Kansas, the next day. Id.
NDHHS assigned Defendant Sarah Brock, a Child and Family Services
Specialist, to investigate the safety of Ayres’s children on September 28, 2015. Id. ¶ 34,
Page ID 333–34. Brock interviewed Ayres’s six-year-old daughter, EA, at her school for
approximately ten minutes. Id. Brock undertook no other investigatory measures. Id.,

3

Page ID 334. Based on this investigation, Brock concluded that “Ms. Ayres’ home was
unsuitable for foster children.” Id. ¶ 35.
Defendant Talana Sayre, also a Child and Family Services Specialist with
NDHHS, was assigned to investigate possible physical abuse of AF, Ayres’s two-yearold foster child. Sayre’s conclusions cite only Brock’s report of her interview with AE;
they do not mention a site visit CPS staff made to AF’s daycare.

Id. ¶ 36.

The

Amended Complaint quotes the director of AF’s daycare, who describes the visit by
CPS staff as lasting only five minutes, and who claims the CPS staff “basically rolled
their eyes” when the director informed them that AF always came to the daycare neatly
dressed and free of bruises. Id. ¶ 37, Page ID 334–35. The Amended Complaint also
states that “Sayre did not talk to or examine either AF or her infant brother.” Id. ¶ 40.
The Amended Complaint alleges that Sayre, Brock, and NDHHS “failed to
contact, interview or otherwise investigate obvious and available collateral sources
concerning AA and AF,” such as “treating physicians, teachers, and day care
personnel . . . .” Id. ¶ 43, Page ID 336. The Amended Complaint describes how these
collateral sources would have supported Ayres’s fitness as a parent. See id., Page ID
336–38.
On October 8, 2015, Brock informed Ayres that she would be placed on the
“Child Abuse Registry,” due to Ayres’s neglect of AA in allowing her to “go ‘off her
meds.’” Id. ¶ 45, Page ID 338. On January 11, 2016, “the Agency[2] concluded that its
investigation substantiated the placement of [Ayres] on the [Child Abuse Registry].” Id.
¶ 47, Page ID 338–39.

2

The Court assumes that “the Agency” refers to NDHHS.

4

As a result of her placement on the Child Abuse Registry, Ayres was prohibited
from fostering children and her children3 were removed from her home. She also lost
her job and the opportunity for future employment in child and family services—her
trained field. Id. ¶¶ 48–50, Page ID 339. At some point, the state of Nebraska removed
Ayres’s name from the Registry. Id. ¶ 51.
The Amended Complaint gives the following summary:
[N]one of [the] Nebraska state agencies or their employees
completed a thorough and legitimate investigation pursuant to NDHHS
guidelines before deciding to place [Ayres] on the Registry. State
employees Sarah Brock, Talana Sayre, Diane Martig, Lana Sayres, and
Brenda Chase conducted and approved an inadequate, perfunctory, and
non-existent “investigation” despite the existence of NDHHS published
guidance and requirements. They failed to consider Ms. Ayres’
constitutional rights and their actions resulted in Ms. Ayres being placed
on the Central Registry, the loss of Ms. Ayres’ license to provide foster
care, loss of her foster and adopted children, and loss of her job.
The State of Nebraska and its employees failed to conduct an
adequate, let alone thorough, investigation. The investigation failed to
meet guidelines in place by DHHS for intake processes and investigation.
Most significantly, the State of Nebraska and its employees should have
and were expected to contact and interview collateral sources who could
provide meaningful and objective information. No such contact was made
and Jill Ayres’ life was devastated by being placed on the Central
Registry. The actions directly flowing from the State of Nebraska’s faulty
investigation as conducted by DHHS employees were: (1) loss of Ms.
Ayres’ children; (2) loss of her job; (3) loss of her profession and
livelihood; and (4) loss of her self-esteem and self-worth.
Id. ¶¶ 53–54, Page ID 340.
Ayres filed this action in the District Court of Douglas County, Nebraska, on
August 3, 2017. Defendants removed the case to this Court on September 1, 2017,
citing the Court’s federal-question jurisdiction. Ayres filed her Amended Complaint on
January 18, 2018.

In the Amended Complaint, the first claim is captioned “FIRST

3

The issue of whether Ayres alleged that all her children or just the foster children were removed
is addressed below.

5

CLAIM

ALL

DEFENDANTS

VIOLATED

JILL

AYRES’

WELL-ESTABLISHED

CONSTITUTIONAL RIGHTS.” Id., Page ID 341. The Amended Complaint goes on to
state that “the State of Nebraska, and its employees, acting in their official capacities,
interfered with and deprived Jill Ayres’ Fourteenth Amendment liberty interest in the
companionship, care, and custody of her daughters.” Id.
Subsequent headings are not captioned numerically, and whether they are
intended as part of the “First Claim” or new claims is difficult to discern. The next
heading states “Defendants Violated Jill’s Constitutionally Guaranteed Rights to
Substantive Due Process Because the ‘Investigation’ Was Not Based on A Reasonable
Suspicion of Child Abuse.” Id., Page ID 342. Under this heading are four subsections,
respectively captioned, “Defendants Violated Jill’s Constitutionally Guaranteed Liberty
Interests Because Its [sic] Investigation Was Inadequate, Incomplete, and Incompetent;”
“Defendants Violated Ms. Ayres’ Constitutional Rights and Liberty Interests Based on
Their Failure to Interview & Corroborate Witness Testimony;” “Defendants Violated Ms.
Ayres’ Constitutional Rights Prior to Placing Her on the Central Registry Based on the
CPS ‘Staggering’ Rates of Error;” and “Defendants Violated Jill’s Constitutional Rights
by Placing Her on The Central Registry When She Exercised Her Constitutional Right to
Determine AA’s Medical Treatment.”

Id., Page ID 343–45.

The final two section

headings simply state “NDHHS Employees Are Liable Under 42 U.S.C. §1983 In Their
Official Capacities” and “Individual Defendants Are Liable in their Personal Capacities.”
Id., Page ID 346–47.
Ayres prays that Defendants “be enjoined from violating her Constitutional rights”
and that she be awarded damages for (1) pain and suffering; (2) medical expenses

6

caused by emotional stress; (3) loss of employment; (4) loss of reputation, (5) loss of
her “license to carry on her profession;” and (6) attorney fees. Id., Page ID 347–48.
STANDARDS OF REVIEW
I. Fed. R. Civ. P. 12(b)(1)—Lack of Subject-Matter Jurisdiction
“In order to properly dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), the complaint must be successfully challenged on its face or on the factual
truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (Osborn
v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)).

“In a facial challenge to

jurisdiction, the court presumes all of the factual allegations concerning jurisdiction to be
true and will grant the motion only if the plaintiff fails to allege an element necessary for
subject matter jurisdiction.” Young America Corp. v. Affiliated Comput. Servs., 424 F.3d
840, 843–44 (8th Cir. 2005) (citing Titus, 4 F.3d at 593). In a factual challenge to
jurisdiction, “there is substantial authority that the trial court is free to weigh the
evidence and satisfy itself as to the existence of its power to hear the case.” Osborn,
918 F.2d at 730.

“In short, no presumptive truthfulness attaches to plaintiff’s

allegations, and the existence of disputed material facts will not preclude the trial court
from evaluating for itself the merits of jurisdictional claims.” Iowa League of Cities v.
EPA, 711 F.3d 844, 861 (8th Cir. 2013) (citing Osborn, 918 F.2d 724, 730). “Once the
evidence is submitted, the district court must decide the jurisdictional issue, not simply
rule that there is or is not enough evidence to have a trial on the issue.” Osborn, 918
F.2d 724.
“As no statute or rule prescribes a format for evidentiary hearings on jurisdiction,
‘any rational mode of inquiry will do.’” Brown, 2010 WL 489531, at *2 (citing Osborn,

7

918 F.2d 724, 730). “So long as the court has afforded the parties notice and a fair
opportunity to be heard, an evidentiary hearing is unnecessary.”

Brown, 2010 WL

489531, at *2 (citing Johnson v. United States, 534 F.3d 958, 964–65 (8th Cir. 2008)).
II. Fed. R. Civ. P. 12(b)(6)—Failure to State a Claim
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy this requirement, a
plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”
Corrado v. Life Inv’rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Barton v. Taber, 820
F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678), cert. denied, 135 S. Ct. 2941 (2015). The complaint’s
factual allegations must be “sufficient to ‘raise a right to relief above the speculative
level.’” McDonough v. Anoka Cty., 799 F.3d 931, 946 (8th Cir. 2015) (quoting Twombly,
550 U.S. at 555).

The Court must accept factual allegations as true, but it is not

required to accept any “legal conclusion couched as a factual allegation.” Brown v.
Green Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016) (quoting Iqbal, 556 U.S. at
678). Thus, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’” Ash v. Anderson Merchandisers, LLC,

8

799 F.3d 957, 960 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 136 S.
Ct. 804 (2016).
On a motion to dismiss, courts must rule “on the assumption that all the
allegations in the complaint are true,” and “a well-pleaded complaint may proceed even
if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a
recovery is very remote and unlikely.’”

Twombly, 550 U.S. at 555 & 556 (quoting

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

“Determining whether a complaint

states a plausible claim for relief . . . [is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Mickelson v.
Cty. of Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alternation in original) (quoting Iqbal,
556 U.S. at 679).
DISCUSSION
I. Findings and Recommendation, ECF No. 33
The record before the Court reflects that Ayres did not serve Defendant Sarah
Brock, who has not voluntarily appeared. Judge Nelson issued an order requiring Ayres
to show cause why Sarah Brock should not be dismissed. The show-cause order
warned Ayres that failure to respond could result in dismissal of Brock. Ayres did not
respond to the order, and Judge Nelson issued a recommendation that Brock be
dismissed for failure of service.

The Court will adopt the Findings and

Recommendation, ECF No. 33, and dismiss Sarah Brock, without prejudice.
II. Motion to Dismiss Project Harmony, ECF No. 31
Project Harmony argues that it should be dismissed because Ayres does not
allege that Project Harmony violated her constitutional rights. The Court agrees. The

9

Amended Complaint alleges that all the individual Defendants were employees of
NDHHS, not Project Harmony.

While the Amended Complaint alleges that Project

Harmony assisted in developing the investigatory guidelines and had an extensive
contractual relationship with the State of Nebraska, these allegations do not involve any
action taken by Project Harmony against Ayres.
The Amended Complaint also contains the conclusory allegations that “[NDHHS]
and Project Harmony placed Ms. Ayres on Nebraska’s Child Abuse and Neglect Central
Registry” and that “NDHHS, through CPS and Project Harmony, failed to conduct a
legitimate investigation . . . .” ECF No. 25 ¶ 32, Page ID 333. However, the Amended
Complaint only alleges that NDHHS employees conducted the investigation, and does
not describe any role played by Project Harmony in placing Ayres on the Child Abuse
Registry.
The only specific actions by Project Harmony alleged in the Amended Complaint
are that the individual Defendants had their offices at Project Harmony and that
NDHHS’s Abuse and Neglect Hotline was located at Project Harmony.

It cannot

reasonably be inferred that allowing the use of space for offices constitutes actionable
constitutional deprivation on the part of Project Harmony.4
Ayres had the burden to plead “enough facts to state a claim to relief that [was]
plausible on its face.” Twombly, 550 U.S. 544, 570. She has not done so, and the
motion to dismiss Project Harmony will be granted.

4

Ayres’s brief opposing dismissal of Project Harmony, ECF No. 35, focused solely on whether
Ayres pleaded sufficient facts to allege that Project Harmony was a state actor due to its relationship with
NDHHS. The Court does not reach this question, but rather concludes that Ayres’s allegations regarding
Project Harmony are so threadbare as to fail to state a claim upon which relief can be granted.

10

III. Motion to Dismiss Defendants NDHHS, Weldon, Sayre, Chase, and Martig,
ECF No. 29
A. Claims for money damages against NDHHS and Defendants Weldon,
Chase, Martig, and Sayre in their official capacities
The State Defendants move for dismissal of NDHHS and the individual State
Defendants, in their official capacities, on grounds of sovereign immunity. Ayres argues
that Nebraska has waived sovereign immunity through the Nebraska Tort Claim Act,
Neb. Rev. Stat. §§ 81-8,209 et seq., and the Political Subdivision Tort Claims Act, Neb.
Rev. Stat. § 13-902. Yet Ayres’s Amended Complaint seeks relief under § 1983, and
“[e]ven if the state waived its Eleventh Amendment immunity, the defendants cannot be
sued for money damages under § 1983 because claims against state officials in their
official capacities are really suits against the state and a state is not a person for
purposes of a claim for money damages under § 1983.” Kruger v. Nebraska, 820 F.3d
295, 301 (8th Cir. 2016) (citing Lapides v. Board of Regents of University System of
Georgia, 535 U.S. 613, 617 (2002); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65–
66, 71 (1989)). Therefore, all claims against NDHHS will be dismissed, and all claims
for money damages against Defendants Weldon, Chase, Martig, and Sayre, in their
official capacities, will be dismissed.
B. Claims for injunctive relief against Defendants Weldon, Chase, Martig,
and Sayre in their official capacities
“A suit for injunctive or declaratory relief avoids [Eleventh Amendment] immunity
if the official has some connection to the enforcement of the challenged laws.” Calzone
v. Hawley, 866 F.3d 866, 869 (8th Cir. 2017) (citing Ex parte Young, 209 U.S. 123, 157

11

(1908)).

The State Defendants argue that Ayres failed to plead entitlement to

prospective relief. As with Article III standing generally, entitlement to injunctive relief
requires a plaintiff to plead a “threat of injury [that is] both real and immediate not
conjectural and hypothetical.” Faibisch v. Univ. of Minnesota, 304 F.3d 797, 801 (8th
Cir. 2002) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). In other
words, entitlement to an injunction requires some “showing of a real or immediate threat
that the plaintiff will be wronged again . . . .” Lyons, 461 U.S. at 111.
The Amended Complaint alleges that Ayres suffered a violation of her
constitutional rights due to her placement on the Child Abuse Registry. The placement
allegedly resulted from an inadequate investigation of Ayres stemming from her
reporting of AA’s erratic behavior. The Amended Complaint also alleges that AA has
now reached the age of majority and that Ayres’s name has been removed from the
Registry. The only reference in the Amended Complaint to any type of prospective
relief is the prayer’s request that Defendants be “enjoined from violating [Ayres’s]
Constitutional rights.”

ECF No. 25, Page ID 347.

Nowhere does the Amended

Complaint describe the requested relief with any specificity or explain how Ayres faces
a concrete risk of future constitutional deprivations.
It is noted, however, that the Amended Complaint alludes to the removal of
Ayres’s children, both adoptive and foster, and does not state their current status. See
id. ¶ 1, Page ID 325 (“NDHHS made traumatic and life-changing decisions resulting in
Ms. Ayres’ loss of employment, loss of her children, loss of her license to act as a foster
care parent; id. ¶ 35, Page ID 334 (“CFSS Brock concluded, based on a single, 10minute interview of a six-year-old child, that Ms. Ayres’ home was unsuitable for foster

12

children.”); id. ¶ 49, Page ID 339 (“The NDHHS’ action also directly resulted in Ms.
Ayres losing her foster children.”); id. ¶ 53, Page ID 340 (“[Defendants] failed to
consider Ms. Ayres’ constitutional rights and their actions resulted in . . . the loss of Ms.
Ayres’ license to provide foster care, loss of her foster and adopted children, and loss of
her job.”); id. ¶ 54 (“The actions directly flowing from the State of Nebraska’s faulty
investigation as conducted by DHHS employees were: (1) loss of Ms. Ayres’
children . . . .”).
Because ¶¶ 53 & 54 imply that NDHHS removed Ayres’s adoptive child from her
home, and it is unclear whether Ayres has regained custody of her, the Court will
assume for purposes of the motion to dismiss that the adoptive child remains in state
custody. Ayres’s claims for injunctive relief against the individual State Defendants in
their official capacities will not be dismissed at this time. The Court may address the
propriety of dismissal of claims for injunctive relief against the individual State
Defendants, in their official capacities, at a later time when discovery reveals whether
Ayres is suffering a continued deprivation of custody of her child and whether the
individual State Defendants “possess authority to enforce the complained-of provision.”
Calzone, 866 F.3d at 869 (quoting Dig. Recognition Network v. Hutchinson, 803 F.3d
952, 957–58 (8th Cir. 2015)).
C. Claims against Defendants Weldon, Chase, Martig, and Sayre in their
individual capacities
The State Defendants also seek dismissal of Defendants Weldon, Chase, Martig,
and Sayre in their individual capacities because the Amended Complaint fails to plead
sufficient allegations as to their personal conduct and Ayres’s constitutional deprivation.

13

“Liability under section 1983 requires a causal link to, and direct responsibility for,
the deprivation of rights.” Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006)
(quoting Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990)). Thus, when a
plaintiff alleges liability on the part of a supervisor under § 1983, mere respondeat
superior liability is insufficient. Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997)
(citing Kulow v. Nix, 28 F.3d 855, 858 (8th Cir. 1994)); Hahn v. McLey, 737 F.2d 771,
773 (8th Cir. 1984) (citing Careaga v. James, 616 F.2d 1062, 1063 (8th Cir. 1980))
(“[T]he theory of respondeat superior cannot be used under § 1983 to shift the
responsibility for the plaintiff’s injuries to the supervisors of the actual wrongdoers.”).
Thus, a plaintiff “must allege specific facts of personal involvement in, or direct
responsibility for, a deprivation of [her] constitutional rights.” Mayorga, 442 F.3d at 1132
(citing Thomason v. SCAN Volunteer Serv., Inc., 85 F.3d 1365, 1370 (8th Cir. 1996);
Wilson v. Cross, 845 F.2d 163, 165 (8th Cir. 1988); Martin v. Sargent, 780 F.2d 1334,
1337 (8th Cir. 1985)).
The Amended Complaint contains a conclusory allegation incorporating several
Defendants, simply stating: “State employees Sarah Brock, Talana Sayre, Diane Martig,
Lana Sayers, and Brenda Chase conducted and approved an inadequate, perfunctory,
and non-existent ‘investigation’ despite the existence of NDHHS published guidance
and requirements.” Amended Compl. ¶ 53, ECF No. 35, Page ID 340.
Regarding Joan Weldon, the Amended Complaint merely alleges that “[a]t all
relevant times, Joan Weldon was employed by [NDHHS] and worked with Project
Harmony as an intake Specialist for the Child and Family Services Hotline,” id. ¶ 5,
Page ID 326, and that Weldon “received Ms. Ayres’ telephone call that resulted in

14

Intake No. 00605837,” id. ¶ 34. Nowhere else does the Amended Complaint mention
Weldon. There is no allegation of personal conduct on the part of Weldon that could
result in liability under § 1983.
Regarding Brenda Chase, the Amended Complaint alleges that she was
employed by NDHHS, id. ¶ 8, Page ID 326, that she accused Ayres of “refusing to sign
papers at Immanuel,” id. ¶ 30, Page ID 332, and that she “refused to tell Ms. Ayres or
her attorney what information they learned in their investigation,” id. ¶46, Page ID 338.
Ayres does not allege that Chase’s accusation or her refusal to provide certain
information amounted to deprivations of Ayres’s constitutional rights.

As to Diane

Martig, the only mention of her in the Amended Complaint, aside from the conclusory
allegation in ¶ 53, is the allegation that “Diane Martig was employed by NDHHS as a
Child and Family Services Supervisor.”

Id. ¶ 9, Page ID 327.

Nowhere does the

Amended Complaint allege specific facts of personal involvement or direct responsibility
by Chase or Martig that resulted in Ayres being placed on the Central Registry.
Because Ayres did not allege sufficient personal involvement or direct responsibility on
the part of Weldon, Chase, or Martig, they will be dismissed from the action in their
individual capacities.
As to Talana Sayre, the Amended Complaint alleges that she was an employee
of NDHSS, id. ¶ 6, Page ID 326, and that she was assigned Intake No. 607095, to
investigate abuse of Ayers’s foster child AF. The Amended Complaint further states
that Sayre’s “intake paperwork . . . only relies on [Sarah] Brock’s report . . . for the
conclusion that Ms. Ayres’ home was unsuitable for foster child AF, due to physical
abuse” id. ¶ 36, Page ID 334, and that Sayre “intentionally omitted any reference to” a

15

visit by CPS staff to AF’s daycare, id. Lastly, the Amended Complaint alleges that
Sayre “did not talk to or examine either AF or her infant brother,” id. ¶ 40, Page ID 335,
and that “the only evidence reviewed by CFSS Sayre was one short interview of six (6)
year old EA,” id.
Unlike the allegations against individual Defendants discussed above, Ayres has
alleged sufficient personal conduct on the part of Sayre that the Court must consider
whether Sayre is entitled to qualified immunity. “The doctrine of qualified immunity
protects government officials from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Heartland Acad. Cmty. Church v. Waddle, 595
F.3d 798, 804 (8th Cir. 2010) (internal quotation marks omitted) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009)). “[W]hen a state official takes an action that would
otherwise disrupt familial integrity he or she is entitled to qualified immunity if the action
is properly founded upon a reasonable suspicion of child abuse.” K.D. v. Cty. of Crow
Wing, 434 F.3d 1051, 1056 (8th Cir. 2006) (citing Abdouch v. Burger, 426 F.3d 982, 987
(8th Cir. 2005); Whisman Through Whisman v. Rinehart, 119 F.3d 1303, 1310 (8th Cir.
1997); Thomason, 85 F.3d at 1371); Manzano v. S. Dakota Dep’t of Soc. Servs., 60
F.3d 505, 511 (8th Cir. 1995)); see also Abdouch, 426 F.3d at 987 (“Even where this
balancing reveals a constitutional violation, qualified immunity still applies unless the
constitutional violation was so clear that an objectively reasonable official under the
circumstances would have recognized the disproportionality or lack of reasonable
suspicion.”); Thomason, 85 F.3d at 1371–72) (describing the relevant issue as “whether
the actions taken by defendants and the resulting disruption to plaintiffs’ familial

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relations . . . were so disproportionate under the circumstances as to rise to the level of
a constitutional deprivation”).
The Court finds that the issue of Sayre’s qualified immunity would more
appropriately be decided on a motion for summary judgment. See Whisman, 119 F.3d
at 1309 (“Qualified immunity is usually raised by a motion for summary judgment after a
limited amount of discovery has been conducted to determine whether defendants
acted objectively in a reasonable manner and whether a plaintiff’s rights were clearly
established at the time of the alleged deprivation.”). The Amended Complaint alleges
that Sayre failed to follow written protocol, intentionally omitted relevant information from
her report, and based her decision solely on second-hand information from the interview
by Brock. Because the Court has no knowledge of the content of Brock’s interview, the
extent of Sayre’s investigation, or the circumstances surrounding the initiation of the
investigation, the Court will not dismiss the claims against Sayre at this juncture.
IV. Defendant Lana Sayers
In her Amended Complaint, Ayres named an additional Defendant, Lana Sayers.
Although the original Complaint, ECF No. 1-1, twice mentioned Sayers in its conclusory
allegations regarding the investigation, it did not name her as a defendant.

The

Amended Complaint states that Ayres spoke with Sayers on the telephone at some
point concerning the investigation, ECF No. 25 ¶ 46, Page ID 339, and that Sayers and
other Defendants “conducted and approved an inadequate . . . ‘investigation,’” id. ¶ 53.
There is no allegation concerning whether Sayers was employed with NDHHS.
Ayres filed the Amended Complaint on January 28, 2018. More than 90 days
have elapsed since the filing, and there is no indication in the record that Sayers has

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been served or voluntarily appeared. Fed. R. Civ. P. 4(m) (“If a defendant is not served
within 90 days after the complaint is filed, the court . . . must dismiss the action without
prejudice against that defendant or order that service be made within a specified time.”).
Thus, the Court will order Ayres to show cause why the action should not be dismissed
as to Lana Sayers.
CONCLUSION
For the reasons stated above, the Motion to Dismiss, ECF No. 29, filed by the
State Defendants will be granted, in part; the Motion to Dismiss, ECF No. 31, filed by
Project Harmony will be granted; the Findings and Recommendation, ECF No. 33, will
be adopted in their entirety; and Ayres will be ordered to show cause why Lana Sayers
should not be dismissed from this action. Accordingly,
IT IS ORDERED:
1. The Motion to Dismiss, ECF No. 29, filed by Defendants Nebraska
Department of Health & Human Services, Joan Weldon, Talana Sayre,
Brenda Chase, and Diane Martig, is granted, in part, as follows;
a. All claims against Defendant Nebraska Department of Health & Human
Services are dismissed, with prejudice, and the Clerk is directed to
remove the name of this Defendant from the caption;
b. All claims against Defendants Joan Weldon, Brenda Chase, Diane
Martig, and Talana Sayre in their official capacities seeking money
damages are dismissed, with prejudice;
c. All claims against Defendants Joan Weldon, Brenda Chase, and Diane
Martig, in their individual capacities, are dismissed, without prejudice,
and the Clerk will amend the caption accordingly;
d. The motion is otherwise denied;
2. The Motion to Dismiss, ECF No. 31, filed by Defendant Project Harmony, is
granted; all claims against Defendant Project Harmony are dismissed, without
prejudice; and the Clerk will remove this Defendant’s name from the caption;

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3. The Findings and Recommendation, ECF No. 33, of Magistrate Judge
Michael D. Nelson, are adopted in their entirety; all claims against Defendant
Sarah Brock are dismissed, without prejudice, and the Clerk will remove the
name of this Defendant from the caption;
4. Plaintiff Jill Ayres shall show cause by June 4, 2018, why Defendant Lana
Sayers should not be dismissed from this action pursuant to Federal Rule of
Civil Procedure 4(m); and failure to comply with this order may result in
dismissal of all claims against Lana Sayers without further notice;
5. Defendants Joan Weldon, Brenda Chase, and Diane Martig, in their official
capacities, and Talana Sayre in her official and individual capacities, will
respond to the remaining claims in the Amended Complaint by June 4, 2018.

Dated this 14th day of May, 2018.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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