                                     ___________

                                     No. 96-1520
                                     ___________

Jacob Todd, By Father, Jim Todd, *
and Mother, Patsy Todd,                     *
                                            *
              Appellee,                     *
                                            *
       v.                                   *   Appeal from the United States
                                            *   District Court for the
Elkins School District No. 10;              *   Western District of Arkansas.
                                            *
              Defendant,                    *          [UNPUBLISHED]
                                            *
John R. Smith; Jane Vaught;                 *
Marsha Wenzel; Jana Eaton,                  *
                                            *
              Appellants.                   *


                                     ___________

                     Submitted:       January 3, 1997

                            Filed:   January 10, 1997
                                     ___________

Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________

PER CURIAM.

       Jim and Patsy Todd, on behalf of their minor child, Jacob Todd, filed
this   action   against     the   Elkins   school   district   and   several   of   its
employees, both in their official and individual capacities.            They alleged
violations of the Individuals with Disabilities Education Act (IDEA), 20
U.S.C. §§ 1400 to 1491o; section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794; and 42 U.S.C. § 1983.          The district court denied qualified
immunity to defendants in their individual capacities on a motion to
dismiss, and we affirm in part and reverse as to one claim.


       The complaint alleged that on November 17, 1994, Jacob, a fourth
grade special education student with muscular dystrophy,
fell from his unbuckled wheelchair and broke his leg while being pushed to
the playground over a rough and uneven field by a fellow student.        The
Todds requested compensatory damages of $500,000 for Jacob's broken leg,
medical expenses, pain and suffering, permanent disability, damage to his
self-esteem and confidence, diminished mobility and health, loss of earning
capacity, and likelihood of a shortened longevity, and punitive damages of
$1 million.


     We review the district court's denial of a motion to dismiss on the
basis of qualified immunity de novo, viewing the allegations in the
complaint in the light most favorable to the plaintiff and accepting them
as true.   Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996), petition for
cert. filed, 65 U.S.L.W. 3433 (U.S. Dec. 2, 1996) (No. 96-906).      At this
early stage, qualified immunity would be granted only if immunity is
established on the face of the complaint.    Id.    We will address only the
qualified immunity issue at this stage; we will not address other issues
before the district court, such as whether the allegations in the complaint
were pled with sufficient specificity.    See id.


     We find that the Todds did not assert a claim under the IDEA, as they
did not claim reimbursement for any expenses they paid to ensure Jacob's
safe transportation.   See Heidemann v. Rother, 84 F.3d 1021, 1032-33 (8th
Cir. 1996) (general and punitive damages not available under IDEA for
injuries such as pain and suffering, emotional anxiety, distress, and loss
of skills; damages limited to reimbursement of expenses).   Thus, we dismiss
the Todds' IDEA claim.    See Seigert v. Gilley, 500 U.S. 226, 232 (1991)
(whether federal right has been violated is "necessary concomitant" of
whether right was clearly established and objectively discernible).


     The Rehabilitation Act prevents discrimination on the basis of
handicap, and damages are not limited as they are under the IDEA.       See
Rodgers v. Magnet Cove Pub. Schs., 34 F.3d 642, 643-44 (8th Cir. 1994).
But cf. Moreno v. Consolidated Rail Corp., 99 F.3d




                                    -2-
782, 791 (6th Cir. 1996) (en banc) (punitive damages not available under
Rehabilitation Act).       The Todds alleged in the complaint that Jacob "was
excluded from the benefits of the Defendants' programs solely because of
his    disability"   and   that   defendants   discriminated   against   Jacob    by
intentionally using unsafe conditions, namely the "unlevel and unimproved
field," to transport him.         They also alleged that defendants acted with
"thoughtless indifference and an intentional disregard" for Jacob's safety.
These allegations are sufficient to state a claim under the Rehabilitation
Act.    See 29 U.S.C. § 794(a); Heidemann, 84 F.3d at 1032 (quoting Monahan
v. State of Nebraska, 687 F.2d 1164, 1171 (8th Cir. 1982), cert. denied,
460 U.S. 1012 (1983)) (defendants must have acted with "bad faith or gross
misjudgment").


       The regulations implementing the Rehabilitation Act require the
school district to provide Jacob with a free appropriate public education,
including "related aids and services."          See 34 C.F.R. § 104.33 (1994).
Included are non-academic services, such as transportation.              34 C.F.R.
§ 104.37 (1994).      We agree with the district court that implicit in the
transportation requirement is the requirement of safe transportation.            Cf.
W.B. v. Matula, 67 F.3d 484, 501 (3d Cir. 1995) (implicit in "child find"
duty in IDEA is requirement that the duty be discharged within reasonable
time; no qualified immunity).        Thus, we agree that Jacob's right to safe
transportation in and around the school was clearly established under the
regulations, and that defendants should have reasonably known they were
violating that right by allowing an untrained fourth grader to push Jacob's
wheelchair, without buckling his seatbelt, over a rough and uneven field.
See Heidemann, 84 F.3d at 1028 (qualified immunity standard).       Whether they
did so with the required mental element is a question of fact that we may
not address in this appeal.


       As to the section 1983 claim, the Todds alleged that defendants
"established a custom, policy, and consistent practice"




                                        -3-
of denying Jacob his rights.   We find that they stated a sufficient section
1983 claim based on the substantive rights in the Rehabilitation Act.
Accordingly, we remand for the district court to dismiss the IDEA claim,
but affirm the denial of qualified immunity on the Rehabilitation Act and
section 1983 claims.


     We grant appellants' motion to strike the hearing officer's report
from appellees' addendum.   See Miller v. Benson, 51 F.3d 166, 168 (8th Cir.
1995).


     A true copy.


           Attest:


                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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