Taylor v. Altoona Area School Dist.

Decision Date23 August 2007
Docket NumberCivil Action No. 05-350J.
Citation513 F.Supp.2d 540
PartiesSonya TAYLOR, Administratrix of The Estate of Devin J. Taylor, and in Her own Right, Plaintiff, v. ALTOONA AREA SCHOOL DISTRICT, Altoona Area School Board, Suzanne Ritchey, Carol Myers, Michelle Adams, R.N., Defendants.
CourtU.S. District Court — Western District of Pennsylvania

Alan R. Krier, Anthony J. Zanoni, Jubelirer, Carothers, Krier & Halpern, Altoona, PA, for Plaintiff.

David P. Andrewsa, Roberta Binder-Heath, Andrews & Beard, Altoona, PA, Randall C. Rodkey, Leventry, Haschak & Rodkey, Johnstown, PA, for Defendants.


GIBSON, District Judge.


This matter comes before the Court on the Defendants' Motion to Dismiss, which has been filed pursuant to Federal Rule of Civil Procedure 12(b)(6). (Document No. 21). For the reasons that follow, the Defendants' Motion to Dismiss will be granted in part and denied in part.


The Plaintiff, Sonya Taylor ("Taylor"), commenced this action on August 30, 2005, against the Altoona Area School District (the "District"), the Altoona Area School Board (the "Board"), Suzanne Ritchey ("Ritchey"), Carol Myers ("Myers"), and Michelle Adams, R.N. ("Adams"), alleging violations of the Individuals with Disabilities Education Act (the "IDEA") [20 U.S.C. § "1400 et seq.], the Rehabilitation Act [29 U.S.C. § 701 et seq.], the Americans with Disabilities Act (the "ADA") [42 U.S.C. § 12101 et seq.], the Pennsylvania Wrongful Death Statute [42 Pa.C.S. § 8301], the Pennsylvania Survival Statute [42 Pa.C.S. § 8302], and the Fourteenth Amendment to the Constitution of the United States. (Document No. 1). On October 11, 2005, the Defendants filed a Motion to Dismiss and/or Motion for a More Definite Statement pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(e). (Document No. 8). This Court disposed of that Motion in a memorandum opinion dated September 28, 2006, in which the Defendants' Motion to Dismiss was granted in part, and in which the Defendants' Motion for a More Definite Statement was granted with respect to certain counts for which the Motion to Dismiss was denied. Taylor v. Altoona Area School District, 2006 U.S. Dist. LEXIS 70853 (W.D.Pa. September 28, 2006) ("Taylor I"). The Court granted Taylor leave to amend upon the granting of the Defendants' Motion to Dismiss. Taylor I, 2006 U.S. Dist. LEXIS 70853, at *50. Taylor filed an Amended Complaint on November 9, 2006. (Document No. 20). Thereafter, on November 20, 2006, the Defendants filed another Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Document No. 21). Since the matter comes before the Court in this context, the allegations contained in the Amended Complaint are assumed to be true. Anza v. Ideal Steel Supply Carp., ___ U.S. ___, ___, 126 S.Ct. 1991, 1994, 164 L.Ed.2d 720, 726 (2006); Sutton v. United Air Lines, Inc., 527 U.S. 471, 475, 119 S.Ct. 2139, 2143, 144 L.Ed.2d 450, 458 (1999).

According to the Amended Complaint, Devin J. Taylor ("Devin") was born on October 12, 1994. (Document No. 20, p. 3, ¶ 8). He was a student at Wright Elementary School ("Wright"), which is located within the District. Id. Taylor is Devin's natural mother, and she served as his primary physical and legal custodian. (Id., ¶ 9). She is also the administratrix of Devin's estate. Id. At all relevant times, Taylor and Devin resided in Altoona, Pennsylvania, within the territorial limits of the District. Id. Moreover, during the relevant period of time, Ritchey was the principal at Wright, Adams was school nurse for the District, and Myers was Devin's third-grade teacher. (Id., p. 4, ¶¶ 11-14).

Devin was identified as, recognized as, and known to be a student with disabilities because of his asthma and related breathing problems. (Id., p. 6, ¶ 28). For this reason, Taylor and the Defendants developed an Individualized Education Program ("IEP") in conformity with 20 U.S.C. §§ 1412(a)(4) and 1414(d), which are contained in the IDEA. (Id., p. 7, ¶ 29). Pursuant to the IEP, Taylor and the Defendants arranged for a Service Plan to be instituted, affording Devin the appropriate services to address his asthmatic condition while he was attending school. (Id., p. 7, ¶ 30). This was the District's way of providing Devin with a free appropriate public education ("FAPE") within the meaning of § 1412(a)(1).

Included within the Service Plan was a document outlining an Asthmatic Reaction Procedure ("ARP"), which required: (1) that Devin be given medication (i.e., use of an inhaler) as prescribed by his physician before exercising and when symptoms began to manifest themselves; (2) that Devin be able to utilize a nebulizer with the assistance of a school nurse; (3) that the school nurse, the appropriate medical provider or Taylor be notified promptly of any related incidents, and the actions taken in response thereto; and (4) that resuscitative efforts be administered in the event that Devin's medical condition were to warrant such action. (Id., ¶ 31). Taylor provided an inhaler for Wright, which was in Myers' possession at the time of the incident leading to Devin's death. (Id., ¶ 32). Arrangements had also been made for Devin's physician to communicate directly with the relevant school officials. Id. The physician indicated in writing that Devin's inhaler should be administered in accordance with the Service Plan and the ARP. Id.

Taylor sought to have the District purchase a nebulizer for. Devin pursuant to the Access program, which was a statesponsored health care program. (Id., pp. 7-8, ¶ 33). The Access program provided for the acquisition of one nebulizer, which was kept at Devin's home. Id. The District refused to purchase an additional nebulizer for Devin. (Id., p. 8, ¶ 34). Consequently, Taylor saved sufficient funds to purchase an additional nebulizer, which was kept at Wright. Id. Nevertheless, the nebulizer was never utilized by Wright to treat Devin's symptoms. Id. Taylor apparently believes that none of the Defendants were properly trained to use the device. Id.

The ARP mandated that certain actions be taken if Devin were to manifest asthmatic symptoms. (Id., ¶ 35). School personnel were directed to perform CPR and contact emergency medical personnel in the event that Devin were to experience breathing difficulties, a decreased pulse or a decreased level of consciousness. Id. The District was provided with the documentation necessary to facilitate Devin's IEP, Service Plan and ARP. (Id., ¶ 36).

In the early morning hours of January 18, 2003, Devin was airlifted to Children's Hospital in. Pittsburgh, Pennsylvania, after suffering an acute bronchial asthmatic attack. (Id., p. 9, ¶ 37). At the time, Devin was a second-grader. Id. He had returned from school on the previous day in a lethargic state. Id. He had apparently experienced breathing difficulties. Id. After Taylor took Devin to an emergency room, the decision was made to airlift him to Children's Hospital. Id.

The next week, Taylor went to Wright and explained to school personnel why Devin had been absent from school. (Id., ¶ 38). She spoke with Devin's second-grade teacher, who explained to her that on January 17, 2003, Devin had experienced "an episode of arduous breathing and lethargy." (Id., ¶ 39). The teacher explained that she had assisted Devin to the school office, and later to the door. Id. Nevertheless, Devin walked home on his own at the conclusion of the day. Id. The teacher expressed to Taylor the view that Devin's manifestation of such symptoms had been related to his hospitalization shortly thereafter. Id. The school officials involved with Devin's IEP, Service Plan and ARP were made aware of this episode. Id.

Prior to Devin's hospitalization, Taylor had not been informed of Devin's breathing difficulties during the previous day of school. (Id., p. 10, ¶ 40). On that day, Devin had not been provided with medical assistance. Id. Instead, he had been left to walk home alone, despite the fact that his symptoms could be aggravated by the cold winter air. Id. Subsequent to Devin's hospitalization, the Defendants were made aware of the risks associated with inattention to his asthmatic symptoms. (Id., ¶ 41). When Devin entered the third grade, Taylor responded to a questionnaire from the District seeking more detailed information about Devin's medical problems. (Id., p. 11, ¶ 42). She indicated that Devin had been treated in an emergency room on at least ten prior occasions, and that serious complications had arisen in situations where his symptoms had not been addressed quickly after manifesting themselves. Id. The IEP, Service Plan and ARP adopted for the 2003/2004 school year required: (1) that Devin's inhaler be administered on a daily basis; (2) that the inhaler be administered upon the manifestation of symptoms or the commencement of strenuous activity; (3) that Devin be provided the opportunity to utilize the nebulizer when his condition deteriorated; (4) that Taylor, the school nurse and Devin's physician remain in contact about Devin's medical condition; (5) that Devin's breathing be monitored to ensure his safety; and (6) that CPR be performed on Devin if he were to stop breathing or experience a dramatic cessation of vital bodily functions. Id.

At the beginning of the 2003/2004 school year, Myers was intimately involved with the development of Devin's IEP, Service Plan and ARP. (Id., p. 12, ¶ 43). Nevertheless, she regularly failed to administer Devin's inhaler before recess and other strenuous activities. Id. On some occasions, she gave Devin the inhaler only after he reminded her to do so. Id. On other occasions; the inhaler was simply not administered. Id.

After returning from recess on September 24, 2003, Devin told Myers that he was experiencing breathing difficulties and lethargy. (Id., p. 12, ¶ 44). Myers responded by telling...

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