___________
No. 96-2903
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Mary Davis, individually; *
Bobby D. Davis, individually *
and as next friends for a *
minor Shane Davis, *
*
Plaintiffs/Appellants, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Francis Howell School *
District; Roger Russell; *
Vicky Stewart; Joan Powlishta, *
*
Defendants/Appellees. *
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Submitted: December 11, 1996
Filed: January 9, 1997
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Before WOLLMAN and MURPHY, Circuit Judges, and TUNHEIM,1 District Judge.
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MURPHY, Circuit Judge.
Mary and Bobby Davis appeal from the denial of preliminary injunctive
relief requiring the Francis Howell School District to administer a
particular dose of Ritalin SR to their son Shane who suffers from attention
deficit hyperactivity disorder (ADHD). The Davises allege that the
district's refusal to administer the medication violates Title II of the
Americans With Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., § 504 of
the Rehabilitation Act, 29 U.S.C. § 794, and 42 U.S.C. § 1983. The
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district court found they had failed to establish irreparable harm and a
likelihood of
1
The Honorable John Tunheim, United States District Judge
for the District of Minnesota, sitting by designation.
2
The Honorable Donald J. Stohr, United States District Judge
for the Eastern District of Missouri.
success on the merits and so denied their injunction motion. We affirm.
Shane Davis has been diagnosed with ADHD, and his doctor has
prescribed 360 milligrams of Ritalin SR a day in pill form to control his
condition. The nurse at his elementary school, Joan Powlishta, frequently
gives school time doses of students' medications, including Ritalin, and
she administered Shane's school time dose for over two years. On April 2,
1996, however, Powlishta notified Shane's mother that she was concerned
about the amount of the prescribed dose because it exceeded the recommended
maximum daily dosage in the Physician's Desk Reference. She asked Mrs.
Davis to get a second doctor's opinion concerning the safety of the dose.
Even though Mrs. Davis obtained the second opinion, Powlishta said she
would stop administering the medication to Shane on April 15. The district
told Shane's parents they could designate someone to come onto the school
grounds to administer his medication, and Mrs. Davis changed her work
schedule and child care arrangements in order to give Shane his school time
dose. Depending on her work schedule and the time when Shane receives his
first daily dose of Ritalin, she either administers one or two doses of
Ritalin to him at school.
The Davises sued the school district, Powlishta, and other school
employees, alleging that the refusal to administer Shane's school time dose
of Ritalin violated the ADA, § 504 of the Rehabilitation Act, and their due
process and equal protection rights under the Fourteenth Amendment. The
district court issued a temporary restraining order on April 25, 1996, and
ordered the school district to continue administering Shane's medication.
After holding an evidentiary hearing on May 9, the district court dissolved
the restraining order and denied a preliminary injunction which would have
required the district to continue administering his school time dose until
trial, which is scheduled to begin May 27, 1997.
2
The standard for issuance of an injunction requires consideration of
the threat of irreparable harm to the movant, the balance between this harm
and the harm created by granting the injunction, the likelihood of success
on the merits, and the public interest. Dataphase Sys., Inc. v. CL Sys.,
Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). The party seeking the
injunction has the burden of establishing these factors. Modern Computer
Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir. 1989).
An issuance or denial of a preliminary injunction is reviewed for abuse of
discretion. Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th
Cir. 1994).
The district court considered the Dataphase factors and found the
Davises had failed to demonstrate the likelihood of success on the merits
or irreparable harm. The court found they had not presented evidence that
the district violated the ADA and the Rehabilitation Act by refusing to
administer Shane's medication on the basis of his disability, deprived them
of a constitutionally protected liberty interest, or failed to give
adequate notice or opportunity to contest its decision. The court also
found the Davises did not show that the inconvenience resulting from the
district's refusal to administer Shane's medication would cause irreparable
harm or that this harm outweighed the harm to the district by requiring it
to administer medication when it was concerned about potential liability.
The Davises claim the district court erred by finding that they had
not established the likelihood of success on the merits of their ADA and
Rehabilitation Act claims. They argue the school district's policy against
administering medication in excess of the maximum recommended dosage and
concern about Shane do not excuse its duty to accommodate his disability.
Both Title II of the ADA and § 504 of the Rehabilitation Act prohibit
the denial of the benefits of services to a qualified
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individual with a disability on the basis of that person's disability. See
42 U.S.C. § 12132; 29 U.S.C. § 794(a). The Davises have not produced
evidence that the district refused to administer Shane's medication on the
basis of his disability rather than on the basis of its policy and its
concerns about liability and students' health. Because they have made no
showing that the district's actions occurred because of Shane's disability,
the Davises have not established a likelihood of succeeding on the merits
of their ADA and Rehabilitation Act claims.
The Davises also argue that the district court erred by finding they
were not likely to be successful on their claims that the district's
refusal to administer medication which exceeds the maximum dosage stated
in the Physician's Desk Reference deprived them of rights under § 1983.
The Davises claim that the school district's refusal to administer
medication to Shane interferes with their right to determine the care of
their child. They have not shown that this right extends to the school
district's administration of medication to Shane or that the school
district interfered with this right or violated due process by refusing to
administer his medication. See North Memorial Med. Ctr. v. Gomez, 59 F.3d
735, 740 (8th Cir. 1995) (citations omitted) (claim of entitlement
underlying due process violation requires an interest stemming from an
independent source, such as state law), and Coleman v. Watt, 40 F.3d 255,
260 (8th Cir. 1994) (due process protections vary depending on deprivation
involved). Furthermore, the comprehensive enforcement mechanisms provided
under § 504 and the ADA suggest Congress did not intend violations of those
statutes to be also cognizable under § 1983. See DeYoung v. Patten, 898
F.2d 628, 634 (8th Cir. 1990).
The Davises also allege that the disruption in their lives from the
district's refusal to administer Shane's medication caused irreparable
damage. The Davises presented evidence that their schedules changed as a
result of the district's actions, that they
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had to ask relatives for help when scheduling conflicts arose, and that
this disruption has created family stress.3 While the record shows the
district's refusal to administer Shane's school time dose of Ritalin has
been inconvenient and has caused some stress for the Davises, they did not
establish that they faced irreparable harm in the months before trial or
that the balance of harms clearly favored them in a situation where the
district had its own concerns related to the administration of medicine.
We have considered the Davises' other arguments but find they do not
require discussion here. Because they did not meet their burden of
establishing their right to injunctive relief, the district court did not
abuse its discretion in denying the preliminary injunction, and its order
is therefore affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
3
In their reply brief, the Davises included additional
affidavits which were not before the district court, and they
subsequently asked permission to enlarge the record. We have
reviewed these affidavits, but we will not consider evidence for
the first time on appeal. See Crawford v. Runyon, 79 F.3d 743,
744 (8th Cir. 1996) (appellate court generally cannot consider
evidence not in record below); Dakota Indus., Inc. v. Dakota
Sportwear, Inc., 988 F.2d 61, 63 (8th Cir. 1993) (enlargement of
record is rare exception to rule against consideration of
evidence not before the district court). The appellees' motions
to strike portions of the appellants' reply brief and to file a
reply in support of the motion to strike are therefore dismissed
as moot.
5