A federal judge has dismissed a lawsuit filed by the parents of a special-needs student who died a day after having a medical issue on a bus.
U.S. District Judge James S. Moody Jr. issued the ruling Friday in the lawsuit brought over the death of Isabella Herrera.
The Sessums Elementary second-grader, who had a neuromuscular disorder that caused her to use a wheelchair, died Jan. 26, 2012. That was one day after she had trouble breathing on the bus on the way home from school, and neither the driver nor the aide called 911.
Instead, Isabella’s mother was called twice as the bus was parked on the side of the road in front of a pediatric clinic. She arrived to find her daughter blue, unresponsive and not breathing.
She tried to resuscitate her, but she died the following day at St. Joseph’s Children’s Hospital.
Her death was one of two to rock the exceptional education department of the school district in 2012. Jenny Caballero, a Rodgers Middle School student, drowned in October after wandering away unnoticed from a gym class.
Steven Maher, attorney for the Herrera family, filed the lawsuit in federal court alleging that Isabella’s treatment by school officials was an act of discrimination done with deliberate indifference to her disability. The lawsuit said the school district did not formulate a proper plan to get Isabella to and from her Riverview home.
Moody granted the school district’s motion to dismiss the lawsuit without prejudice. He did, however, give attorneys for the Herrera family 20 days to amend their complaint.
“In concluding that plaintiffs’ allegations are insufficient to state a claim, the court does not mean to trivialize the tragic death,” Moody wrote. “However, the court must be mindful not to allow a tragic event to go forward under federal claims that do not provide relief for a party’s simple, or even heightened, negligence.”
School district attorney Tom Gonzalez said he was not surprised by the judge’s ruling.
“It’s not a federal case,” he said. “If anything, it’s a wrongful death case, if that.
“The statutes and the constitutional provisions they sued on don’t apply in this case,” Gonzalez added. “Those cases require some kind of intentional act of wrongdoing, or deliberate indifference, which does not exist and did not apply in this case.”
Maher could amend the complaint and file it back in federal court. Or he could file a lawsuit in state court.
He declined to comment Tuesday on his plans.