                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 08-3019
                                 ___________

C.N., on her own behalf and by and      *
through her parent and natural          *
guardian, J.N.,                         *
                                        *
             Appellant,                 *
                                        *
      v.                                *
                                        *
Willmar Public Schools, Independent *
School District No. 347; Michael        *
Carlson, Chair, Willmar Board of        * Appeal from the United States
Education, in his representative        * District Court for the
capacity; Kathryn Leedom,               * District of Minnesota.
Superintendent in her personal and      *
representative capacities; Susan Smith, *
Supervisor of Special Education, in her *
personal and representative capacities; *
Rebecca Simenson, Principal, in her     *
personal and representative capacities; *
Lisa Van Der Heiden, in her personal    *
and representative capacities,          *
                                        *
             Appellees.                 *
                                   ___________

                           Submitted: June 11, 2009
                              Filed: January 7, 2010 (Corrected 1/11/10)
                               ___________

Before MELLOY, BEAM and COLLOTON, Circuit Judges.
                          ___________
BEAM, Circuit Judge.

       C.N., by and through her mother, J.N., appeals the dismissal of various federal
claims against Willmar Public Schools, Independent School District No. 347 (the
District), several officials affiliated with the District and her former special education
teacher Lisa Van Der Heiden. We affirm.

I.    BACKGROUND

      When this action commenced, C.N., a special education student, attended fourth
grade in the Atwater Public School District in Atwater, Minnesota. This action,
however, concerns events that allegedly occurred while C.N. was enrolled at Lincoln
Elementary School within the District in Willmar, Minnesota, where C.N. attended
school from midway through kindergarten to midway through her third grade year.

       C.N. was born in March 1998 and was tested for Autism Spectrum Disorder
(ASD) in 2001. Although the testing ruled out ASD, further testing revealed C.N. had
a communications disorder and attentional and hyperactivity problems. Ultimately,
C.N. was designated as developmentally delayed with speech and language
impairment. Thus, during kindergarten at Jefferson Elementary, a school within the
District, C.N. had an individualized education program (IEP) geared toward
addressing her special needs. The IEP was created through the collaborative efforts
of the local education agency, teachers, parents and behavioral service providers (the
IEP team). C.N.'s IEP included a behavior intervention plan (BIP), which authorized
the use of restraint holds and seclusion when C.N. exhibited various target behaviors.
After continued behavioral problems, the District and J.N. agreed C.N. should be
assessed by Tim Ardoff, an outside evaluator from Southern Minnesota Community
Support Services. After the evaluation, the District transferred C.N. to Lincoln
Elementary, another District school, in January 2004. C.N.'s IEP and BIP were also
revised to incorporate some of Ardhoff's suggestions. Ardhoff did not specifically


                                           -2-
recommend the use of restraint holds or seclusion. Over J.N.'s alleged objections,
however, C.N.'s BIP continued to authorize such procedures to address certain target
behaviors. During later evaluations, Ardhoff recommended against seclusion, and
J.N. allegedly continued to object to the use of restraints and seclusion. Throughout
C.N.'s time at Lincoln, however, the IEP team continually adjusted her IEP, and at all
relevant times, the IEP authorized controlled procedures.

       While attending Lincoln, C.N. worked with Defendant Lisa Van Der Heiden,
a special education teacher. Van Der Heiden sometimes used the controlled
procedures authorized in C.N.'s BIP, and recorded the incidents in behavioral and
communication logs she kept for her students. The complaint alleges that during
C.N.'s time under her care, Van Der Heiden used those techniques improperly and
excessively and also mistreated C.N. For example, Van Der Heiden allegedly made
C.N. sit at a "thinking desk" and hold a physical posture for a specified time, or else
face restraint or seclusion. Van Der Heiden also allegedly yelled and shouted at C.N.,
demeaned and belittled C.N., once pulled C.N.'s hair when she would not hold a
posture at the thinking desk and once denied C.N. use of the restroom, causing an
accident. C.N. also reported to J.N. that Van Der Heiden "choke[d] her and that the
restraints hurt her very much."

       During C.N.'s third grade year (the 2006-07 school year), a paraprofessional
reported Van Der Heiden to the Minnesota Department of Education's (MDE)
Maltreatment of Minors Division for maltreatment of C.N. This was the third such
report made against Van Der Heiden. J.N. learned of those allegations in August
2006, and filed a complaint with the MDE's Accountability and Compliance Division
in September 2006. Ultimately, according to the complaint, the MDE investigations
concluded Van Der Heiden violated a number of C.N.'s rights as a child with a
disability and also maltreated C.N. by denying her access to the restroom. During the
MDE's investigations, the District placed Van Der Heiden on leave and conducted its
own investigation into allegations that she mistreated two students, one of whom was

                                         -3-
C.N. On two previous occasions in 2005 and 2006, the District had conducted similar
investigations but found no misconduct by Van Der Heiden. This time, the District
found evidence that Van Der Heiden denied C.N. access to the restroom but attributed
the incident to a lapse in judgment. Thus, Van Der Heiden was never disciplined by
the District for any maltreatment allegations.1 Without notice to J.N., Van Der Heiden
returned to Lincoln on October 2, 2006. She remained at Lincoln until October 6,
2006, but was not at school the following week and had no further contact with C.N.

      J.N. thereafter repeatedly contacted Defendant Kathryn Leedom, District
Superintendent, and asked to be notified if and when Van Der Heiden returned to
Lincoln. On November 29, 2006, Leedom wrote J.N. and informed her that Leedom
had no obligation to provide that information to J.N. J.N. subsequently withdrew her
daughter from Lincoln and enrolled her at St. John's, a private school in Atwater,
Minnesota, for the remainder of her third grade year. J.N. enrolled C.N. in the
Atwater public school district for the 2007-08 school year.

      On October 17, 2007, C.N., by and through J.N., requested an administrative
hearing and filed a complaint with the MDE, challenging the adequacy of the
educational services provided by the District. Relying on a line of cases beginning
with Thompson v. Board of Special School District No. 1, 144 F.3d 574 (8th Cir.
1998), the Administrative Law Judge (ALJ) granted the District's motion to dismiss
the hearing request for lack of jurisdiction because C.N. was no longer enrolled in the


      1
        The district court stated "[u]ltimately, the District dismissed the maltreatment
allegations against Van Der Heiden," which C.N. vigorously contests on appeal,
noting she alleged the MDE conducted the maltreatment investigation and concluded
Van Der Heiden did engage in maltreatment. The preceding sentence in the district
court's opinion, however, refers to paragraphs in the complaint that discuss the
District's investigations and allege that Van Der Heiden was never disciplined by the
District for any maltreatment. Thus, we think the court simply meant to indicate the
District's internal investigation revealed no wrongdoing by Van Der Heiden.

                                          -4-
District and had transferred to Atwater without requesting a hearing against the
District.

       C.N. appealed that ruling to the district court,2 and asserted various federal and
state claims against the District, District Board Chairman Michael Carlson in his
official capacity, and Van Der Heiden, Leedom, Lincoln principal Rebecca Simenson
and Supervisor of Special Education Programming Susan Smith, in both their
individual and official capacities. As relevant to this appeal, C.N. asserted federal
claims under the Individuals with Disabilities Education Act (IDEA), Section 504 of
the Rehabilitation Act and 42 U.S.C. § 1983 for violations of the Fourth and
Fourteenth Amendments. The district court concluded C.N.'s IDEA claim failed as
a matter of law because she did not request a hearing on her claims against the District
until after leaving the District. The court also dismissed C.N.'s remaining federal
claims for failure to state a claim and declined to exercise jurisdiction over her state
law claims.3 This appeal follows.4


      2
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
      3
        C.N. does not challenge the dismissal of her IDEA or Section 504 claims
against the individual defendants, in both their official and individual capacities, or
her claims under § 1983 for violations of her right to procedural due process and her
rights under the IDEA, Section 504 and the Equal Protection Clause.
      4
        In her appendix, C.N. has included two administrative decisions which are not
a part of the record below. "'An appellate court can properly consider only the record
and facts before the district court and thus only those papers and exhibits filed in the
district court can constitute the record on appeal.'" Bath Junkie Branson, L.L.C. v.
Bath Junkie, Inc., 528 F.3d 556, 559-60 (8th Cir. 2008) (quoting Huelsman v. Civic
Ctr. Corp., 873 F.2d 1171, 1175 (8th Cir. 1989)); see also Fed. R. App. P. 10(a).
Because these documents were presented for the first time on appeal, "they are not
part of the record for our review," and we cannot consider them. Bath Junkie, 528
F.3d at 560. Accordingly, we grant Appellees' motion to strike pages 1-41 of the
Appendix and any corresponding facts and arguments in Appellant's briefs.

                                          -5-
II.   DISCUSSION

      A.     Standard of Review

       "This court reviews de novo the grant of a motion to dismiss, taking all facts
alleged in the complaint as true." Owen v. Gen. Motors Corp., 533 F.3d 913, 918 (8th
Cir. 2008) (quotation omitted). We bear in mind, however, that although a complaint
need not include detailed factual allegations, "a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and alteration omitted).
Instead, the complaint must set forth "enough facts to state a claim to relief that is
plausible on its face." Id. at 570.

      B.     IDEA Claim

       We first address C.N.'s challenge to the dismissal of her IDEA claim against the
District. As noted above, after transferring to the Atwater public school system, C.N.
requested an administrative hearing against the District, challenging the adequacy of
the educational services provided by the District. Like the ALJ, the district court
concluded C.N.'s IDEA claim failed under Thompson, 144 F.3d 574, because she did
not request a hearing to challenge the education provided by the District until after
leaving the District. C.N. contends that ruling was in error because recent changes to
Minnesota law have rendered Thompson invalid. We disagree.

       The IDEA seeks to ensure that all disabled children receive a free appropriate
public education (FAPE) designed to meet their needs. 20 U.S.C. § 1400(d)(1)(A).
To that end, the IDEA "provides federal money to state and local education agencies
in order to assist them in educating handicapped children on the condition that the
states and local agencies implement the substantive and procedural requirements of

                                         -6-
the Act." M.P. v. Indep. Sch. Dist. No. 721, 326 F.3d 975, 979 (8th Cir. 2003).
Substantively, for example, school districts must develop an IEP for each disabled
student. Id. The IDEA also provides certain "procedural safeguards to permit
parental involvement in all matters concerning the child's educational program and [to
allow] parents to obtain administrative and judicial review of decisions they deem
unsatisfactory or inappropriate." Id. Thus, a parent who is dissatisfied with certain
aspects of a child's special education may request an administrative due process
hearing to resolve the matter, and the party aggrieved by the outcome of the hearing
process may file suit in state or federal court. Id. at 979-80. See also 20 U.S.C. §
1415(b)(6), (f) & (i)(2)(A).

       When Thompson was decided, the Minnesota statute implementing the IDEA
provided that such hearings "shall be 'initiated and conducted by and in the school
district responsible for assuring that an appropriate program is provided.'" 144 F.3d
at 578 (emphasis added) (quoting former Minn. Stat. § 120.17, subd. 3b(e)). And in
Thompson, we concluded that "[i]f a student changes school districts and does not
request a due process hearing, his or her right to challenge prior educational services
is not preserved." Id. at 579. Rather, "[s]ubsequent challenges to the student's
previous education become moot because the new school district is responsible for
providing a due process hearing." Id. Accord M.P., 326 F.3d at 979-81; Smith v.
Special Sch. Dist., No. 1, 184 F.3d 764, 767-68 (8th Cir. 1999). Under the version of
the statute applicable to this case, due process hearings are "conducted by the state"
and "must be held in the district responsible for ensuring that [a FAPE] is provided."
Minn. Stat. § 125A.091, subd. 12(a) (2008) (emphasis added); see also M.M. v.
Special Sch. Dist. No. 1, 512 F.3d 455, 460 & n.4 (8th Cir. 2008), cert. denied, 129
S. Ct. 452 (2009). Relying on Thompson and the applicable statute, the district court
concluded C.N.'s IDEA claim failed as a matter of law because the District was no
longer responsible for providing C.N. with a FAPE when she requested the hearing.




                                         -7-
        On appeal, C.N. suggests Thompson is no longer good law after the statutory
amendment. Specifically, because the state now conducts all hearings, C.N. suggests
it is immaterial whether a student requests a due process hearing against a particular
district before or after leaving that district. We disagree. As the Thompson court
recognized, the hearing process is in place to ensure that a "disabled child's
educational needs are being met by the student's school district." 144 F.3d at 578.
After all, "'[t]he purpose of requesting a due process hearing is to challenge an aspect
of a child's education and to put the school district on notice of a perceived problem.
Once the school district receives notice, it has the opportunity to address the alleged
problem.'" M.M., 512 F.3d at 460 (quoting Thompson, 144 F.3d at 579). And like
the statute in effect at the time of Thompson, the applicable statute reflects these
principles–it too requires that any hearing be held in the district currently responsible
for the student's education. See former Minn. Stat. § 120.17, subd. 3b(e) (requiring
the hearing be held in the "district responsible for assuring that an appropriate
program is provided"); Minn. Stat. § 125A.091, subd. 12(a) (requiring the hearing be
held in the district "responsible for ensuring that a [FAPE] is provided") (emphases
added).5 C.N., however, did not request a due process hearing while the District was
responsible for her education. Rather, by the time C.N. requested a hearing against
the District, Atwater had already assumed responsibility for providing C.N. with an
appropriate education geared toward addressing her specific needs (including any
arising from deficiencies in C.N.'s prior education). Under these circumstances, we
agree with the district court that C.N.'s IDEA claim fails but she may request a hearing
against Atwater if she believes her educational needs are not currently being met.6

      5
      Nor are we persuaded by C.N.'s related argument regarding Minnesota Rule
3525.4110.
      6
       To the extent C.N. suggests her September 2006 complaint to the MDE
provided the District with adequate notice of her claim, we disagree. "The case law
confirms that state and federal complaint procedures other than the IDEA due process
hearing do not suffice for exhaustion purposes." Weber v. Cranston Sch. Comm., 212
F.3d 41, 53 (1st Cir. 2000). Nor does the filing of such a complaint satisfy Thompson,

                                          -8-
Thompson, 144 F.3d at 580. We note, however, that C.N. indicated in her brief that
she has no complaints regarding her current educational situation.

       C.N. also contends she should be allowed to proceed with her IDEA claim,
notwithstanding her failure to request a hearing before leaving the District, because
an immediate transfer was necessary for her physical and psychological safety. Our
case law suggests otherwise.7 In M.P., a student was verbally harassed and physically
assaulted by his classmates after a district employee disclosed his mental health
condition to school authorities. 326 F.3d at 977-81. Although his parents engaged in
repeated discussions with school authorities and otherwise tried to remedy the
"intolerable situation" he endured through informal means, they did not request a due
process hearing until after removing their son from the delinquent district and we
affirmed dismissal of M.P.'s IDEA claim under Thompson. Id. at 979-81. Applying
our prior precedents in this case, we are likewise bound to affirm dismissal of C.N.'s
IDEA claim.8


which requires that a student request a due process hearing before transferring from
the delinquent district if the student wishes to preserve his or her right to challenge the
educational services provided by that district.
      7
        C.N. also asserted a claim against the District for a violation of her rights under
Section 504 of the Rehabilitation Act. "The IDEA exhaustion requirement applies to
claims brought under section 504 . . . to the extent that those claims seek relief that is
also available under the IDEA." M.Y. v. Special Sch. Dist. No. 1, 544 F.3d 885, 888
(8th Cir. 2008) (citing 20 U.S.C. § 1415(l)). After dismissing C.N.'s IDEA claim, the
district court also dismissed this claim as "little more than [a] rehash [of the] IDEA
claim." C.N. broadly asserts that the district court erred in dismissing this claim for
failure to exhaust, but limits her remaining arguments to her constitutional claims.
Thus, we affirm dismissal of this claim too, in light of our resolution of C.N.'s
Thompson arguments.
      8
       The concurring opinion suggests establishment of an "equitable" exception to
the Thompson rule. Our opinion for the court, however, deals only with the facts
before us in this litigation. According to the complaint, an allegedly offending teacher

                                           -9-
      C.     Constitutional Claims

       C.N. also challenges the dismissal of her 42 U.S.C. § 1983 claims for Fourth
and Fourteenth Amendment violations. As relevant to this appeal, C.N. asserted
violations of her Fourth Amendment right to be free from unreasonable seizures and
her Fourteenth Amendment right to substantive due process. The district court
dismissed those claims as to the District after concluding the complaint failed to
identify an unconstitutional District policy or custom that caused the alleged injuries.
The court further concluded the individual defendants were entitled to qualified
immunity because C.N. failed to allege either a Fourth Amendment or a substantive
due process violation. Finding no error, we affirm.




was educationally separated from the pupil almost two months before the parent saw
fit to remove the pupil from the District into a private school. Then, after removing
the pupil from the District, the parent waited ten months to request a due process
hearing. So, whether or not an equitable exception to the rule can be validly
formulated given the statutory mandates considered in Thompson, there is clearly no
case for reaching such issue today. As noted by Justice Ginsburg in her unanimous
opinion for the Court in Union Pacific Railroad Co. v. Brotherhood of Locomotive
Engineers, 130 S. Ct. 584, 596 (2009), in the absence of a live issue there is "no
warrant to answer a question that may [or may not] be consequential in another case."


                                         -10-
             1.   Individual Appellees

       We first consider the allegations against the individual Appellees Van Der
Heiden, Leedom, Smith and Simenson.9 Qualified immunity protects individual state
actors from liability under § 1983 unless they violate "clearly established statutory or
constitutional rights of which a reasonable person would have known." Brockinton
v. City of Sherwood, 503 F.3d 667, 671 (8th Cir. 2007). Because we agree with the
district court that C.N. failed to allege a violation of her constitutional rights, we
conclude the individual Appellees are entitled to dismissal on qualified immunity
grounds.

                    a.   Fourth Amendment

       Turning first to C.N.'s Fourth Amendment claim, the complaint alleges, in
essence, that Van Der Heiden violated C.N.'s right to be free from unreasonable
seizures by seizing, restraining, secluding and confining C.N., and the other Appellees
failed to stop that conduct. The district court concluded C.N. failed to allege a Fourth
Amendment violation because C.N.'s IEP authorized the use of restraints and
seclusion to manage her behavior and thus, even if such actions amounted to seizures,
they were not constitutionally unreasonable. On appeal, C.N. contends that ruling was
in error, because Van Der Heiden (1) used those methods excessively and punitively,
over J.N.'s alleged objections and despite the fact Ardhoff did not recommend the
methods; and (2) also verbally and physically abused C.N.




      9
         Carlson was named in his representative capacity only, and "[a] suit against a
governmental actor in his official capacity is treated as a suit against the governmental
entity itself." Brockinton v. City of Sherwood, 503 F.3d 667, 674 (8th Cir. 2007). We
therefore resolve this claim below, in our discussion of C.N.'s § 1983 claim against
the District.

                                          -11-
       A litigant may state a Fourth Amendment violation by alleging facts which
indicate a seizure occurred and that it was unreasonable. See McCoy v. City of
Monticello, 342 F.3d 842, 846 (8th Cir. 2003). Moreover, the Fourth Amendment's
protections extend to actions by public school officials. See, e.g., Couture v. Bd. of
Educ., 535 F.3d 1243, 1250-52 (10th Cir. 2008); Shade v. City of Farmington, 309
F.3d 1054, 1059-62 (8th Cir. 2002). Reasonableness is judged in light of the totality
of the circumstances, however, McCoy, 342 F.3d at 848, and "[c]ontext is [therefore]
critical to reasonableness analysis." Couture, 535 F.3d at 1251. And in a school
setting, "[t]he Fourth Amendment's reasonableness inquiry . . . must account for 'the
schools' custodial and tutelary responsibility' over the students entrusted to their care."
Shade, 309 F.3d at 1059 (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656
(1995)).

        Applying those principles here, we conclude the district court properly
dismissed C.N.'s Fourth Amendment claim. We first consider C.N.'s allegations
relating to the use of restraints and seclusion. Assuming C.N. was seized within the
meaning of the Fourth Amendment when Van Der Heiden employed those methods,
we agree with the district court that any such seizures were not unreasonable. We
have held that an authorized professional's treatment of a disabled person within the
state's care is reasonable if his or her actions are "not a substantial departure from
accepted professional judgment, practice, or standards." Heidemann v. Rother, 84
F.3d 1021, 1030 (8th Cir. 1996). Here, C.N.'s IEP authorized the use of restraints and
seclusion and we agree with the district court that the IEP "set the standard for
accepted practice." And although J.N. contends she objected to the use of those
methods, she did not request a hearing to challenge those methods while C.N. attended
school in the District. Because C.N.'s IEP authorized such methods, Van Der Heiden's
use of those and similar methods like the thinking desk, even if overzealous at times
and not recommended by Ardhoff, was not a substantial departure from accepted




                                           -12-
judgment, practice or standards and was not unreasonable in the constitutional sense.10
Indeed, as the Tenth Circuit recently observed, we would place educators in a very
difficult position if we did not allow them "to rely on a plan specifically approved by
the student's parents and which they are statutorily required to follow." Couture, 535
F.3d at 1252. For these reasons, the district court correctly concluded Van Der
Heiden's use of those procedures did not violate C.N.'s Fourth Amendment rights.

       C.N. also contends the district court ignored her abuse allegations in concluding
she failed to allege a Fourth Amendment violation, and suggests those allegations state
a claim for excessive force. This circuit has generally analyzed claims alleging
excessive force by public school officials under the rubric of substantive due process,
however, and not the Fourth Amendment. See, e.g., Doe v. Gooden, 214 F.3d 952,
955 (8th Cir. 2000) (noting that physical abuse by a teacher might amount to a
constitutional violation if it was "literally shocking to the conscience"); see also
Golden v. Anders, 324 F.3d 650 (8th Cir. 2003); Wise v. Pea Ridge Sch. Dist., 855
F.2d 560, 564-65 (8th Cir. 1988); accord Gottlieb v. Laurel Highlands Sch. Dist., 272
F.3d 168, 171-72 (3d Cir. 2001) (concluding the momentary use of force by a teacher
against a student "does not effect a seizure of the student under the Fourth
Amendment" and collecting cases applying the Fourteenth Amendment's "shocks the
conscience" standard to claims alleging excessive force by public school officials)
(quotation omitted). Accordingly, we agree with the district court that C.N. failed to



      10
        C.N. also argues that Van Der Heiden's use of those procedures sometimes
contravened state special education rules and was therefore unconstitutional. We
disagree, as "[v]iolations of state law do not state a claim under 42 U.S.C. § 1983,"
which "guards and vindicates federal rights alone." Doe v. Gooden, 214 F.3d 952,
955 (8th Cir. 2000) (quotation omitted) (concluding school district officials' failure
to report a teacher's alleged abuse of students as required by a state child abuse
reporting statute did not amount to "unconstitutional misconduct"). Moreover, to the
extent C.N. relies on facts not before the district court in making those arguments, we
do not consider them. See ante at n.4.

                                         -13-
allege a Fourth Amendment violation, and the individual defendants are entitled to
qualified immunity on this claim. See Brockinton, 503 F.3d at 671-73.

                    b.    Fourteenth Amendment

       We now turn to whether C.N. has adequately pleaded a substantive due process
claim. To do so, C.N. must allege actions by a government official which "violated
one or more fundamental constitutional rights" and were "shocking to the
contemporary conscience." Flowers v. City of Minneapolis, 478 F.3d 869, 873 (8th
Cir. 2007) (internal quotation omitted). This is a high standard, as

       [s]ubstantive due process is concerned with violations of personal rights
      . . . so severe . . . so disproportionate to the need presented, and . . . so
      inspired by malice or sadism rather than a merely careless or unwise
      excess of zeal that it amounted to brutal and inhumane abuse of official
      power literally shocking to the conscience.

Golden, 324 F.3d at 652-53 (first alteration added) (quotation omitted). C.N. contends
she has done so, pointing again to her allegations that Van Der Heiden physically and
verbally abused the disabled children in her care, and the other individual defendants
failed to stop that conduct.

      As the Supreme Court has recently reiterated, however, "[a] pleading that offers
[merely] 'labels and conclusions'" or "'naked assertion[s]' devoid of 'further factual
enhancement'" does not plausibly establish entitlement to relief under any theory.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (third alteration in original) (quoting
Twombly, 550 U.S. at 555, 557). Judged against these standards, C.N.'s complaint
does not state a viable substantive due process claim. Some of the abuse allegations
do not even identify C.N. as the victim of the alleged mistreatment–rather, the
complaint simply asserts that on unspecified dates and under circumstances not
described, Van Der Heiden allegedly mistreated unidentified disabled children in a

                                          -14-
variety of ways. Such vague allegations neither provide the Appellees with fair notice
of the nature of C.N.'s claims and the grounds upon which those claims rest nor
plausibly establish C.N.'s entitlement to any relief. Twombly, 550 U.S. at 555 n.3,
570; see also id. at 565 n.10 (disapproving of factual allegations which fail to mention
times, places, or persons involved in the specified events, and noting that a defendant
seeking to respond to such "conclusory" allegations "would have little idea where to
begin."). And even those allegations that are specific to C.N. are little more than
general assertions of harm, lacking elaboration as to the context of the alleged
incidents or resulting injuries. "[T]he scope of substantive due process is carefully
circumscribed," Flowers, 478 F.3d at 875, and the pleading standard established by
Federal Rule of Civil Procedure 8(a)(2) "demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949. The vague
allegations set forth in C.N.'s complaint do not plausibly state a claim for a violation
of her substantive due process rights, and the individual defendants are entitled to
qualified immunity on this claim as well. Brockinton, 503 F.3d at 671-73.11

             2.     The District

         C.N. also challenges the dismissal of her § 1983 claims against the District.
"'[T]he touchstone of the § 1983 action against a government body is an allegation that
official policy is responsible for a deprivation of rights protected by the Constitution
. . . .'" McVay v. Sisters of Mercy Health Sys., 399 F.3d 904, 909 (8th Cir. 2005)
(alterations in original) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690
(1978)). Because C.N. has not alleged a violation of her constitutional rights, it


      11
         We are not unsympathetic to C.N.'s arguments that her ability to provide
additional factual allegations has been hampered by her communicative problems and
the fact she has not been provided complete access to the District's records. We are,
however, bound by the Supreme Court's directive that a complaint must contain
"enough facts to state a claim to relief that is plausible on its face." Twombly, 550
U.S. at 570. C.N.'s vague allegations fall far short of that standard.

                                         -15-
follows that the District cannot be liable under § 1983. See id.; see also McCoy v.
City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005).

III.   CONCLUSION

      For the foregoing reasons, we affirm the dismissal of C.N.'s federal claims.
C.N. may, of course, proceed with her state claims, which were dismissed without
prejudice by the district court.

COLLOTON, Circuit Judge, concurring.

       C.N. was a special education student at the Lincoln Elementary School in the
Willmar Public Schools from kindergarten through the third grade. She alleges that
a special education teacher at the Lincoln school abused her physically and
emotionally during that time, and that the school district deprived her of the free
appropriate public education to which she is entitled under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(b)(6), (f), (i)(2)(A). C.N.
asserts that she left the Lincoln school in November 2006 to avoid further abuse, and
completed the third grade at a Catholic school in Atwater, Minnesota. She enrolled
in the Atwater public school district for the fourth grade in the fall of 2007. In
October 2007, C.N. filed a complaint with the Minnesota Department of Education
alleging that the Willmar school district denied her a free appropriate public education
under the IDEA while she attended Lincoln. She sought compensatory education
services to make up for the educational deprivations that she allegedly suffered. See
Miener ex rel. Miener v. Missouri, 800 F.2d 749, 754 (8th Cir. 1986).

       This court held in Thompson ex rel. Buckhanon v. Board of the Special School
District No. 1, 144 F.3d 574, 578-79 (8th Cir. 1998), that a Minnesota student did not
state a cause of action against a school district under the IDEA for failing to provide
a free appropriate public education, because the student did not request a due process

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hearing under § 1415(f) until after he left the district and enrolled in another school.
In this case, an administrative law judge for the State of Minnesota dismissed C.N.’s
claim under the IDEA based on Thompson, because C.N. did not file her complaint
until after she left Willmar and enrolled in school at Atwater. The district court
dismissed C.N.’s claim under the IDEA on the same ground.

       Minnesota law has changed since Thompson, and it now provides that a due
process hearing must be conducted by the State rather than by the school district in
which the student is enrolled. Minn. Stat. § 125A.091, Subd. 12. Under the present
system, the State presumably has authority to order compensatory relief from a school
district in which the student previously was enrolled. See Minn. R. 3525.4110, Subp.
2(A)(3). To the extent that Thompson rested on the lack of authority for a new school
district to order relief from a former school district, that rationale likely has been
superseded by statute and rule.

       The court’s opinion correctly observes, however, that the rationale of Thompson
for denying the student’s claim against his former district was not so limited. Rather,
Thompson also reasoned that “[t]he purpose of requesting a due process hearing is to
challenge an aspect of a child’s education and to put the school district on notice of
a perceived problem.” 144 F.3d at 579. The court explained that “[o]nce the school
district receives notice, it has the opportunity to address the alleged problem.” Id.
Even though a hearing officer acting on behalf of the State of Minnesota now may
have authority to order a former school district to provide equitable relief, see Minn.
R. 3525.4110, Subp. 2(A)(3), the “notice” rationale of Thompson still prevails. See
M.M. ex rel. L.R. v. Special Sch. Dist. No. 1, 512 F.3d 455, 460-61 (8th Cir. 2008).

       C.N. argues that the notice requirement of Thompson is created “out of whole
cloth,” and that we should abandon it. It is true that the statute does not include an
express requirement that a student provide notice to a school district, or request a due
process hearing, as a precondition to obtaining equitable relief, except in the case of

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reimbursement for private school placement. See 20 U.S.C. § 1412(a)(10)(C)(iii).
Other courts have recognized, however, that because equitable considerations are
relevant to fashioning relief under the IDEA, see Sch. Comm. of Burlington v. Dep’t
of Educ. of Mass., 471 U.S. 359, 374 (1985), the courts also may establish equitable
preconditions to relief. The Second Circuit observed, for example, that “courts have
held uniformly that reimbursement is barred where parents unilaterally arrange for
private educational services without ever notifying the school board of their
dissatisfaction with their child’s IEP [individualized education plan].” M.C. ex rel.
Mrs. C, 226 F.3d 60, 68 (2d Cir. 2000); see also Town of Burlington v. Dep’t of Educ.
for Mass., 736 F.2d 773, 799 (1st Cir. 1984) (recognizing a reasonable distinction
“between a unilateral parental transfer made after consultation with the school system,
yet still an action without the system’s agreement, and transfers made truly
unilaterally, bereft of any attempt to achieve a negotiated compromise and
agreement”). Thompson is best understood as applying a similar equitable
consideration that requires notice to the school district of an alleged deficiency, and
an opportunity to resolve the problem, before a student may obtain relief under the
IDEA.

       C.N. contends that if this court adheres to the judicially-created notice
requirement of Thompson, then the court should recognize an exception when a
student shows that continued enrollment in the school district likely would result in
physical harm or serious emotional harm to the student. She notes that when
Congress, in the context of private school reimbursement, “codif[ied] the previously
recognized discretion of a court to reduce or bar reimbursement where parents fail to
raise the appropriateness of an IEP in a timely manner,” M.C., 226 F.3d at 69 n.9, the
statute also included exceptions. Notice is not required for private school
reimbursement where the public school prevented the parent from providing notice,
where compliance with the notice requirement “would likely result in physical harm
to the child,” or, in the discretion of the court, where compliance with the notice
requirement “would likely result in serious emotional harm to the child.” 20 U.S.C.

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§ 1412(a)(10)(C)(iv). C.N. argues that the equitable Thompson rule should be subject
to similar exceptions.

       I agree with the court, on this record, that no exception to Thompson is
warranted, because C.N. has not pleaded facts that plausibly support a reasonable
inference that continued enrollment at the Willmar school during the course of a due
process hearing under the IDEA was likely to result in physical harm or serious
emotional harm. See ante, at 9 n.8; Aschroft v. Iqbal, 129 S. Ct. 1937, 1949-50
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). The court’s
decision, however, deals only with the facts of this action, ante, at 9 n.8, and does not
foreclose the recognition of an equitable exception to the judicially-created Thompson
rule on an appropriate set of facts. Nor does the decision in M.P. ex rel. K. v.
Independent School District No. 721, 326 F.3d 975 (8th Cir. 2003), preclude an
exception to Thompson. The court in M.P. never considered how the Thompson
notice requirement should apply in cases of likely physical or serious emotional harm.
See M.P., 326 F.3d at 980-81. Although the facts in M.P. might have supported an
argument for an exception to Thompson, the point was not raised by the appellant or
resolved by the court, and the decision is therefore not controlling on this question.
See Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which merely lurk in the
record, neither brought to the attention of the court nor ruled upon, are not to be
considered as having been so decided as to constitute precedents.”).

       In sum, while Thompson creates an equitable requirement that a student must
request a due process hearing under the IDEA while still enrolled in the allegedly
offending school district, this court has not considered the appropriateness of an
exception to the notice requirement where continued enrollment likely would result
in physical harm or serious emotional harm to the child. It seems unlikely that
Congress contemplated that a student in that situation must either (1) forfeit equitable
remedies to which the child is entitled under the IDEA by leaving the offending
district to avoid physical or serious emotional harm, or (2) remain in an abusive

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environment that is likely to result in physical or serious emotional harm in order to
pursue these equitable remedies. I concur on the understanding that the parameters
of the Thompson rule in this context remain open for consideration.
                       ______________________________




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