School Dodges Mother's H1N1 Vaccine Protest

11/6/2012 8:21:00 AM, Joe Harris
     ST. LOUIS (CN) - A mother cannot sue the school that allegedly vaccinated her son against her wishes, the 8th Circuit ruled.
     Kinyata Allen filed a lawsuit against the St. Louis Board of Education in April 2011, school nurses at Dunbar Elementary vaccinated her son for H1-N1 even though she told them not to because the child has asthma.
     A federal judge dismissed the case, and the 8th Circuit affirmed Friday.
     Allen failed to show that the school board inadequately trains employees, that the board was deliberately indifferent to the rights of others in adopting its training policies and that the alleged deficiency in the board's training practices actually caused the injury, according to the seven-page ruling.
     "Plaintiffs' complaint did not come close to meeting these rigorous standards," Judge James Loken wrote for a three-member panel. "The substantive due process claim of Ms. Allen required proof of conscience-shocking behavior. The complaint alleged that Nurse Franklin told B.A.B. she would administer the vaccine by shot, not by nasal mist, the allegedly harmful alternative, because his asthma put him in need of the H1-N1 vaccination. However inappropriate it may have been to override Ms. Allen's refusal to consent, this was not conscience shocking 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 consent. Adding these insufficiencies to the inadequate and conclusory allegations regarding the Board's failure to train, we conclude these § 1983 claims were properly dismissed, either for failure to plead a plausible claim, or for failure to state a claim."
     The appeals court also found that the board was entitled to sovereign immunity and that such immunity extends to the nurse who administered the vaccine.
     "The District Court ruled that Nurse Clark was sued only in her official capacity and therefore is entitled to the sovereign immunity that defeats Count IV's negligent supervision claim against the board," Loken wrote. "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 asserted only official capacity § 1983 claims."
     Judges Roger L. Wollman and Diana E. Murphy concurred with Loken. Attachment