CHARLESTON – A lawsuit that alleges a vice principal at Riverside High School and a sheriff’s deputy mistook a student’s reaction to waking up from a seizure-induced nap as an act of aggression has been removed to federal court.

On Oct. 1, the defendants in the lawsuit filed by Betsy Frame on behalf of her daughter, identified as B.D., removed the lawsuit to U.S. District Court for the Southern District of West Virginia.

The case was originally filed Sept. 10 in Kanawha County Circuit Court.

The defendants say in their removal notice that the complaint makes a claim for violations of the girl’s constitutional rights, and thus, venue is proper in federal court.

Johnnie E. Brown of Pullin, Fowler, Flanagan, Brown & Poe in Charleston is representing the defendants.

According to the complaint, Frame’s daughter, identified as B.D., as early as 2009 was diagnosed with epilepsy, Asperger’s Syndrome, attention deficit, social anxiety and seizure disorders. Prior to enrolling her at Riverside for the 2011-12 school year, Frame worked with the Board of Education in developing an independent education plan for B.D.

The IEP, the suit states, made references that a symptom of B.D.’s Asperger’s Syndrome caused her to be “selectively mute – rarely speaking to anyone regardless of the interaction.” Also, her epilepsy caused B.D. to sometimes go into a “sleeping seizure” whereby she would appear asleep and, upon awakening “appear to be dazed, confused and disoriented,” the complaint says.

According to the suit, B.D. on Nov. 18, 2011, at about 7:30 a.m. experienced a sleeping seizure in Riverside’s special education classroom. Riverside High vice principal Andrew Johnson was summoned to the classroom when the teacher, who is not identified in the complaint, was unable to get a response from her, the complaint says.

About 15 minutes later, Johnson arrived in the classroom with Corporal Richard Lane, who is assigned to Riverside as its prevention resource officer, the suit says. Instead of inquiring about her medical status, the suit claims they gave B.D. “multiple warnings to awaken and come down to the office.”

After Johnson was unable to get a response from B.D. after tapping her on the shoulder at least once, “Lane then issued several other verbal commands for B.D. to sit up and then proceeded to tap her on the shoulder,” the suit says. When that proved unsuccessful, the suit states Lane “placed his hand on her elbow and further asked her to go to the office.”

This, the suit says, caused B.D. to be awakened from her seizure whereupon she smacked Lane’s arm. As a result, Lane allegedly first “placed his hand under her right bicep and jerked her completely out of her chair” then placed her under arrest “by throwing her to the ground, face down and forcibly placing her hands in cuffs behind her back.”

Following her arrest, the suit states Lane took B.D. to his cruiser and bound her legs with zip ties before later transporting her to Kanawha Magistrate Court where he charged her with battery on a police officer, obstructing and disturbance of schools, the suit says. Though the charges were later dismissed on an unspecified date, B.D. was subsequently suspended from Riverside, the suit says.

The arrest and suspension, Frame says, has had a devastating impact on B.D.’s health as she now “disengages in the world around her due to her selective mutism” and not only “remains unable to sleep alone at night,” but also is “afraid of male authority figures and people in uniform.” Also, Frame maintains she’s experienced unspecified “health-related problems” from attending “numerous administrative hearings and medical appointments for B.D. since that date.”

The plaintiffs are represented by Brian R. Blickenstaff with Turner and Johns in Charleston.

In addition to Johnson and Lane, the defendants in the case are their employers – the Kanawha County Board of Education and the Kanawha County Sheriff’s Department, respectively – and an unknown special education teacher.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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