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U.S. judge dismisses suit over special-needs pupil's death

TAMPA — The facts of 7-year-old Isabella Herrera's death last year after she stopped breathing on a school bus are tragic, a federal judge agrees. But they don't support a federal civil rights lawsuit against the Hillsborough County School District, he ruled.

U.S. District Judge James Moody Jr. on Friday dismissed the suit, ruling Herrera's parents — Dennis and Lisa — did not show the district had discriminated against them and their daughter, who suffered from a neuromuscular disorder that made it hard for her to hold her head up.

Moody gave the Herreras 20 days to amend their suit, although he expressed doubt they could do so sufficiently.

Steven Maher, an attorney for the Herreras, declined Tuesday to comment. Schools attorney Tom Gonzalez was unavailable for comment.

On Jan. 25, 2012, Isabella Herrera, of Riverview, stopped breathing on her bus ride home from Sessums Elementary School. Neither the bus driver nor an aide called 911. The driver alerted a supervisor and the aide called Lisa Herrera. Isabella was hospitalized and later died.

The Herreras alleged Isabella's wheelchair was not positioned properly and staff were not properly trained. The district's "egregious and systemic failures" led to her death, they contended.

Judge Moody cited several problems he found with the suit:

• The Herreras failed to show the district violated their constitutional rights, not just their daughter's, a requirement of legal standards for federal cases.

• Moody agreed with the district that the lawsuit, essentially, alleged violation of the Individuals with Disabilities Education Act. But the Herreras' lawyers did not make that argument, though; they argued the district violated the Americans with Disabilities Act. The reason, the judge presumed, is because courts have ruled plaintiffs cannot win tort-like damages in IDEA cases.

• The Herreras did not show a longstanding practice by the district of ignoring complaints by disabled students, nor did they show the district knew its employees needed more training and deliberately chose not to. "The single incident," Moody wrote, referring to Isabella's death, "although tragic, is insufficient."

Herrera's death was one of several incidents that prompted questions from Hillsborough School Board members about the district's treatment of special needs students, including the Oct. 22 death of Jenny Caballero, an 11-year-old with Down syndrome who drowned in a pond behind Rodgers Middle School after she wandered away from her physical education class, and the case of Stephanie Wilkerson, 41, a bus driver facing aggravated child abuse charges after video shows she kicked an 8-year-old with autism off the steps to her bus. The girl broke her ankle in the fall, police said.

U.S. judge dismisses suit over special-needs pupil's death 03/26/13 [Last modified: Tuesday, March 26, 2013 11:38pm]

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