Earl D. Wolverton v. Doniphan R-1 School

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1321
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Earl D. Wolverton, for next *
friend Joshua Wolverton, *
*
Appellant, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
Doniphan R-1 School District; * [UNPUBLISHED]
Commercial Union Insurance *
Company, *
*
Appellees. *
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Submitted: June 7, 2001
Filed: June 12, 2001
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Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
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PER CURIAM.
Joshua Wolverton was in attendance at Doniphan R-1 School District&s
classroom for behaviorally disadvantaged students when a security guard sprayed him
with mace for behavior that could have been attributed to Joshua's mental illness.
Seeking money damages for the pain and distress Joshua suffered, Earl D. Wolverton
as Joshua&s next friend sued Doniphan and its insurer (who was separately dismissed
and is not at issue here), alleging that the macing deprived Joshua of his Fourteenth
Amendment procedural due process rights, and that it also violated 20 U.S.C.
§ 1415(k)(4), a portion of the Individuals with Disabilities Education Act (IDEA)
providing for a hearing to review a school&s decision to change the placement of a
disabled child. The district court1 dismissed for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1), and Wolverton appeals. Upon
de novo review of the record, see Lemonds v. St. Louis County, 222 F.3d 488, 492 (8th
Cir. 2000), cert. denied, 121 S. Ct. 1168 (2001), we affirm.
We agree with the district court that Joshua may not recover under
section 1415(k)(4), because there is no allegation of a contemplated change of
placement for Joshua; further, IDEA does not allow recovery of damages. See
Birmingham v. Omaha Sch. Dist., 220 F.3d 850, 856 (8th Cir. 2000). The procedural
due process claim also fails because Wolverton did not allege that Doniphan had a
policy or custom requiring the use of mace to discipline students, or that a school
official made an executive decision to have Joshua maced. See Shrum v. Kluck, No.
00-1874, 2001 WL 476903 at *4 (8th Cir. May 8, 2001). We do not consider the
allegations and claims raised for the first time in Wolverton&s appeal brief. See
Alexander v. Pathfinder, Inc., 189 F.3d 735, 742 (8th Cir. 1999).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
The HONORABLE CAROL E. JACKSON, United States District Judge for the
Eastern District of Missouri.
2