# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 12-1426

___________________________ B.A.B., Jr., a minor; Kinyata L. Allen, his Mother

lllllllllllllllllllll Plaintiffs - Appellants

v. The Board of Education of the City of St . Louis; Richelle Clark, St. Louis Public School District, Lead Nurse

lllllllllllllllllllll Defendants - Appellees

____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis

____________ Submitted: September 17, 2012 Filed: November 2, 2012

____________ Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.

____________ LOKEN, Circuit Judge. Dunbar Elementary School in St. Louis administered the H1-N1 vaccine to students at the school in December 2009. B.A.B., a fifth grade student, was given an H1-N1 shot by Nurse Lula Franklin despitetelling Franklin, and presenting a signed parental form confirming, that his mother , Kinyata Allen, did not consent to the vaccination. B.A.B. and his mother commencedthis action in state court against theSt. Louis Board of Education (“the Board” ), Nurse Franklin, and Lead Nurse Richelle Clark, asserting Fourth Amendment and substantive due process claims under 42 U.S.C. § 1983 and state law claims for ne gligence and negligent supervision. Defendants removed the action. After plain tiffs voluntarily dismissed Nurse Franklin, the district court 1 dismissed all claims against th e Board and Nurse Clark for failure to state a claim. B.A.B. and Ms. Allen appeal, arguing the district court erred in dismissing the § 1983 claims against the Boar d for failure to train its employees and the negligent supervision claim ag ainst Nurse Clark. We affirm.

I.

The Complaint alleged two § 1983 claims against Nurse Clark and the Board arising out of Nurse Franklin’s vaccinati on of B.A.B. despite knowing there was no parental consent -- an unreasonable search and seizure in violation of B.A.B.’s Fourth Amendment rights (Count I), and a violation of Ms. Allen’s Fourteenth Amendment parental right to direct the education and control the medical care of her child (Count II). The district court dismissed the § 1983 claims against Nurse Clark because, as Clark was only sued in her official capacity , the claims were redundant of plaintiffs’ claims against her employer, the Board. Pl aintiffs do not appeal that ruling. See Veatch v. Bartels Lutheran Home , 627 F.3d 1254, 1257 (8th Cir. 2010).

Turning to the § 1983 claims against the Bo ard, the district court correctly noted that a local government entity may not be sued under § 1983 on a respondeat superior theory of liability, but may be subject to § 1983 liability for inadequate training of its employees that directly cause s constitutional injury. See City of Canton v. Harris , 489 U.S. 378, 388 (1989); Monell v. Ne w York Dep’t. Soc. Servs. , 436 U.S. 658, 694 (1978). Relying on Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009), the district court

1 The Honorable Rodney W. Sippel, United States District Judge for the Eastern District of Missouri.
-2-dismissed these claims because plaintiffs’ failure-to-train allegations merely recited elements of their causes of action and asse rted legal conclusions without sufficient factual support to make the claims plausible.

On appeal, B.A.B. and Ms. Allen argue th e district court erred in dismissing their § 1983 claims against the Board b ecause the Complaint sufficiently stated failure-to-train claims. Review of this contention requires a closer look at the Complaint. Plaintiffs alleged that the cons ent form did not state what type of vaccine would be administered; that a vaccine ad ministered by nasal mist, as opposed to a shot, should not be used for children with asthma; that B.A.B. has asthma; that Ms. Allen marked the form stating she did notconsent; that B.A.B. gave Nurse Franklin the form and told her that his mother di d not consent; and thatNurse Franklin told B.A.B. that, “regardless of wh at his Mother said, he need ed the shot because he had asthma.” Regarding the Board’s liability for failure to train, the Complaint alleged:

23. The [Board] and Defendant Cl ark failed to sufficiently train, oversee, and/or supervise the District’s nursing staff with regard to issues of parental consent.

24. The Defendants’ conduct shocks the conscience and indicates a reckless, deliberate and callous indifference to the well defined constitutional rights of the Plaintiffs.

It is well-established that § 1983 claims based on the Board’s failure to train its employees require proof that “(1) the [Board’s] training practices [were] inadequate; (2) the [Board] was deliberately indifferent to the rights of others in adopting them, such that the ‘failure to train reflects a de liberate or conscious choice by [the Board]’; and (3) an alleged deficiency in the . . . training procedures actually caused the plaintiff’s injury.” Parrish v. Ball , 594 F.3d 993, 997 (8th Cir. 2010), quoting City of Canton , 489 US. at 389. Plaintiffs must prove that “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of

-3-constitutional rights, that the policymakers of the [Board] can reasonably be said to have been deliberately indifferent to the need.” Id. at 998, again quoting City of Canton . “‘Deliberate indifference’ entails a le vel of culpability equal to the criminal law definition of recklessness.” Bender v. Regier , 385 F.3d 1133, 1137 (8th Cir. 2004). To survive a motion to dismiss, a co mplaint must allege sufficient facts “to state a claim to relief that is plausibl e on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007).

Plaintiffs’ Complaint did not come close to meeting these rigorous standards. The substantive due process claim of Ms. Allen required proof of conscience-shocking behavior. The Complaint alleged thatNurse Franklin told B.A.B. she would administer the vaccine by shot, not by nasa l mist, the allegedly harmful alternative, because his asthma put him inneed of the H1-N1 vaccination. However inappropriate it may have been to override Ms. Allen’s re fusal to consent, this was not conscienceshocking behavior by a public school nurse. B.A.B.’s Fourth Amendment claim failed to allege that he refused to consent to this minimally invasive procedure, only that he told Nurse Franklin his mother did not cons ent. Adding these insufficiencies to the inadequate and conclusory allegations regarding the Board’s failure to train, we conclude these § 1983 claims were properly di smissed, either for failure to plead a plausible claim, or for failu re to state a claim. See Schmidt v. Des Moines Pub. Schs. , 655 F.3d 811, 815-17 (8th Cir. 2011).

II.

In Count IV, the Complaint alleged stat e law claims against Nurse Clark and the Board for negligent supervision of the nursing staff and respondeat superior liability. Two weeks after the case was rem oved, the Board filed a motion to dismiss, arguing as to Count IV that it is entitled to sovereign immunity under Mo. Rev. Stat. § 537.600. Some months later, Nurse Clark filed her motion to dismiss, arguing as to Count IV that she had been sued in he r official capacity and therefore is entitled to

-4-sovereign immunity like her employer, th e Board. Plaintiffs’ Memorandum in Opposition to Clark’s motion argued, as to Count IV, “it is well settled [under Missouri law] that sovereign immunity app lies to public entities, not individuals,” and the Complaint “in no way indicates that Defe ndant Clark is being sued in her official capacity with regard to Count IV.” Ina lengthy reply Memorandum, Clark asserted that Count IV stated only an official cap acity claim barred by the Board’s sovereign immunity, relying on Veatchand other Eighth Circuit cases establishing that a § 1983 complaint not expressly asserting an indivi dual capacity claim stat es only an official capacity claim.

The district court dismissed Count IV, ruling that the Board is entitled to sovereign immunity -- a ruling plaintiffs do not appeal -- and that “all claims asserted against [Nurse Clark] are redundant of the claims asserted against [the Board].” Plaintiffs appeal the dismissal of their cl aims against Clark. Relying on Southers v. City of Farmington , 263 S.W.3d 603, 609-614 (Mo. banc 2008), they argue that “[t]he distinction between official capacity and individual capacity is not a distinction recognized under Missouri common law.” Ther efore, whether Clark has an immunity defense against the negligent supervision cl aims asserted in Count IV turns on state law doctrines of official immunity and public duty immunity that the district court did not address.

The assertion that Missouri law does not “recognize” the distinction between official capacity and individual capacity cl aims is incorrect. “Sovereign immunity, if not waived, bars suits against employees in their official capacity , as such suits are essentially direct claims against th e state.” Betts-Lucas v. Hartman , 87 S.W.3d 310, 327 (Mo. App. 2002), citi ng Edwards v. McNeill , 894 S.W.2d 678, 682 (Mo. App. 1995). Applying this principle in another recen t case, the district court ruled that “[a] suit against a government employee in her official capacity is equivalent to a suit against the government entity itself, and s overeign immunity therefore also applies

-5-with equal force in the context of offici al capacity claims.” Fischer v. Steward , No. 4:07-CV-1798, 2010 WL 147865, at *11 (E.D. Mo. 2010), citing Betts-Lucas

.

Plaintiffs are correct th at the Supreme Court of Missouri did not “recognize” this distinction in Southers . But the omission is not surprising -- the municipal employer of the individual defendants in Southers was not entitled to sovereign immunity, and therefore the immunity defe nses asserted by the individual defendants turned on the individual capacity doctrines of official and public duty immunity. 263 S.W.3d at 618-622. There is dicta in the lengthy Southers opinion that can be read as implicitly overruling the official capac ity distinction noted in Betts-Lucas , but like the district court’s post-Southers decision in Fischer , we decline to do so.

The district court ruled that Nurse Clark was sued only in her official capacity and therefore is entitled to the sovereign i mmunity that defeats Count IV’s negligent supervision claim against the Board. As the Complaint named as a defendant, “Richelle Clark, Lead Nurse, St. Louis Public School District,” and alleged that Clark was “an employee and agent of the District acting within the course and scope of her employment and agency authority ,” we agree plaintiffs a sserted only official capacity § 1983 claims. See, e.g. , Veatch , 627 F.3d at 1257. The parties’ memoranda to the district court debated whether Missouri c ourts in considering a sovereign immunity defense would follow our rule that a § 1983 complaint that does not expressly assert an individual capacity claim states only an o fficial capacity claim. The district court did not clearly address this issue in its Memorandum and Order. As plaintiffs do not raise the issue on appeal, we do not consider it.

Moreover, if Nurse Clark was sued in her i ndividual capacity, we conclude that Count IV, assuming it stated a viable claim of negligent supervision, would be subject to the individual capacity defenses of offi cial and public duty immunity as a matter of law. See Nguyen v. Grain Valley R-5 Sch. Dist. , 353 S.W.3d 725. 733 (Mo. App. 2011) (“supervisory conduct and policy making is disc retionary and covered by

-6-official immunity,” citing Southers , 263 S.W.3d at 621); Porter v. Williams , 436 F.3d 917, 922-23 (8th Cir. 2006) (affirming the grant of official immunity under Missouri law because the alleged supervisory acts were discretionary); accordState ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 449 (Mo. banc 1986).

The judgment of the district court is affirmed.

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