I -  17

         1    badness, whatever of that atmosphere.  We're really more in

         2    terms of the relationship, the hours, the kind of work that

         3    was done, whether or not, you know, the defendants were a

         4    commercial enterprise.  So I don't understand what you are

         5    talking about.

         6             MR. STILLEY:  Well, I mean, the totality of the

         7    circumstances is the important issue here.  And what I'm

         8    trying to do is to show the jury actually what he was doing

         9    and the conditions of that.  Because the defendants are

        10    saying, well, we were just trying to do this to help him.

        11    And the plaintiff is saying, no, you were doing it to try to

        12    make money.

        13             THE COURT:  That's what my mother used to tell me

        14    people.  You know, in my day, my mother -- when the boys

        15    acted bad, she'd put their chair up against the wall, and

        16    you'd have to get up under there and she'd take that iron

        17    cord and she told me she was doing it for my own good.

        18    That's what they said.  Now go ahead.

        19             MR. STILLEY:  I think that is fair.  And I'd like

        20    the Court to rule on that.  I think the Court should say,

        21    yes, you can show the true facts of how he was worked because

        22    there's a difference between somebody --

        23             THE COURT:  Well, I'll tell you what, in terms of

        24    describing the kind of work he did, fine.  But in terms of

        25    trying to ask the jury be sympathetic because he was

                                                                    I -  18

         1    mistreated, no.  You understand?

         2             MR. STILLEY:  I understand.

         3             THE COURT:  But don't try to sneak across the line,

         4    you know, because the whistle will be blown.  And you have

         5    been told here.  And this is the way it works with me.  Do

         6    not think I'm going to call you up here to the bench to tell

         7    you that you just didn't understand this when you should have

         8    been inside the line.  I'm going to let you know right there

         9    in front of that jury, okay.

        10             MR. STILLEY:  Certainly.

        11             THE COURT:  So everybody understands as I told you

        12    already, can't waste time here, we got to move this show on.

        13             MR. STILLEY:  Certainly.  Since we're on this

        14    issue --

        15             THE COURT:  So I'm granting this.  In terms of cruel

        16    and unusual punishment, that's excluded.  You're not here --

        17    we're talking about violation of Fair Labor Standards Act and

        18    a battery, not any cruel and unusual punishment.  That's just

        19    the sympathy ploy you're playing, you know.  So you got to

        20    stay away from that.

        21             MR. STILLEY:  Well, there's some related issues

        22    here.

        23             THE COURT:  I know there are.

        24             MR. STILLEY:  Well, I'll let you take up in the

        25    order.  And if we still got any left --

                                                                    I -  19

         1             THE COURT:  Fine.  What about references to other

         2    students or acts inflicted upon them, students.  Other

         3    students by defendants.  What about that?

         4             MR. STILLEY:  Your Honor, I think that that would be

         5    proper to show intimidation to compel him to continue to

         6    work.

         7             THE COURT:  Well, you know, this is about the fact,

         8    did he work, what did he do when he worked.  Again, you're on

         9    this false imprisonment situation.  That's granted.

        10             MR. STILLEY:  Now, let me make sure I understand

        11    this.  For example, where this other boy was forced to

        12    continue to run until he urinated and defecated in his pants,

        13    is he prohibited from mentioning anything about that?

        14             THE COURT:  Oh, absolutely.  What has that got to do

        15    with this?

        16             MR. STILLEY:  Well, that's --

        17             THE COURT:  That is understandably something that

        18    does not clearly appear to be appropriate for it to occur,

        19    but that is not what this case is about.  That's the problem.

        20    And the problem is this, I let all this stuff in, then the

        21    Court of Appeals gets to beating me around for letting all

        22    this stuff in that I shouldn't let in.  I'm trying to keep

        23    the record clean.  Can't have all this stuff you're trying to

        24    throw up against the wall.  See, you need to think about how

        25    does this show a violation of the Fair Labor Standards Act or

                                                                    I -  20

         1    how does it tend to show that this battery occurred.  If it

         2    doesn't tend to show that, it may sound good, it may show

         3    from your perspective that the defendants are bad people, but

         4    that's not this case.  It's simple as that.  That's not this

         5    case.

         6             MR. STILLEY:  Can I make a run at trying to explain

         7    why that is part of this case?

         8             THE COURT:  Go for it.

         9             MR. STILLEY:  Okay.  One of his jobs was a security

        10    guard.  He was compelled to act as an unpaid security guard.

        11    And the reason that this boy who was running in the woods,

        12    the reason that he didn't run in the woods and go to the

        13    bathroom is that everybody, including the plaintiff was under

        14    strict orders if he gets more than slapping distance away

        15    from his personal security guard, you all have to attack him.

        16    So that was part of his job duties.  And that's --

        17             THE COURT:  So he did that.  He ran after the

        18    person?

        19             MR. STILLEY:  He didn't have to do that, but that is

        20    why the kid -- and he was on duty, then he had to watch to

        21    make sure this kid didn't run over the hill.  If he had not

        22    had these orders in an ordinary circumstance as he was

        23    running on, he'd say go to the bathroom.

        24             THE COURT:  You can hear him tell about his duties,

        25    then you want to get to what happened to this other person

                                                                    I -  21

         1    because of some general duties.  Fine.  We're talking about

         2    his duties, what he had to do as a job.

         3             MR. STILLEY:  Well --

         4             THE COURT:  Not what happened to other people.

         5             MR. STILLEY:  Well, certainly he should be allowed

         6    to say that he was required to act as an unpaid security

         7    guard.

         8             THE COURT:  He can tell what his job duties were,

         9    what he did.

        10             MR. STILLEY:  Can he explain how he had to behave

        11    with relation to the other kids as part of those job duties?

        12             THE COURT:  Is that part of his job?  Was that part

        13    of his job duties?

        14             MR. STILLEY:  Yes, Your Honor, it was.

        15             THE COURT:  Well, we'll see.  Okay.

        16             MR. STILLEY:  So are we still open on that?  Can we

        17    just take that as it comes in?

        18             THE COURT:  Don't go too far with that.  Don't go

        19    too far.  You know, when I was a kid, the guys would wrestle

        20    in the neighborhood, the big guys would take their knuckle

        21    and put it to your head and you'd either have to say mama or

        22    I give.  Don't bring us to that, please.  Okay.  You just

        23    keep stretching.

        24             MR. STILLEY:  Your Honor, I want a fair presentation

        25    of the evidence.

                                                                    I -  22

         1             THE COURT:  We all want a fair presentation.  And I

         2    understand your concerns.  But that what you're talking about

         3    in a great deal is not a part of this case.  You know, as

         4    they say, I feel your pain.  But that isn't part of this

         5    case.

         6             MR. STILLEY:  His duties as a security guard --

         7             THE COURT:  His duties.  What did he have to do as

         8    part of his job.

         9             MR. STILLEY:  Okay.  And can I ask him then what did

        10    this require you to do in relation to specific students?

        11             THE COURT:  Well, you want to get to somebody

        12    urinating in their pants and defecating in their pants.  I

        13    mean, please.  That isn't part of his job to make somebody do

        14    that, okay.

        15             MR. STILLEY:  Actually it was, Your Honor.

        16             THE COURT:  Oh, please.

        17             MR. STILLEY:  It was.

        18             THE COURT:  To make somebody urinate or defecate in

        19    their pants?

        20             MR. STILLEY:  Yes.  If he had --

        21             THE COURT:  Well, you better present me some

        22    evidence that that was part of his duties.  That's a hard job

        23    to get done it would seem to me.

        24             MR. STILLEY:  Your Honor, that's their rules.

        25             THE COURT:  Fine.  Let me tell you something.  You

                                                                    I -  23

         1    are an officer of this court.  You want me to accept what

         2    you're saying is true so that when you do something, I accept

         3    what you're saying.

         4             MR. STILLEY:  Correct.

         5             THE COURT:  You seem to be stretching things, okay.

         6             MR. STILLEY:  Your Honor --

         7             THE COURT:  I can't see -- I just don't see that,

         8    that that's your job duty, to make somebody urinate and

         9    defecate in their pants.  I just don't see that as a specific

        10    job duty.  Fine.  I don't want to discuss that any further.

        11    You just present your testimony about the job duties.

        12             Defendants using or retaining people with firearms

        13    there at Mountain Park and Palm Lane.  That's excluded.

        14             MR. STILLEY:  Your Honor, can I make a statement?

        15             THE COURT:  Go ahead.

        16             MR. STILLEY:  He was forced to throw the bottles

        17    from the shootout.

        18             THE COURT:  That was one of his jobs?

        19             MR. STILLEY:  Yes.

        20             THE COURT:  Well, it seems like you may have to put

        21    that in.  But, see, the problem that it seems to me is that

        22    you want to continue to emphasize that this was a prison,

        23    that the plaintiff was falsely imprisoned.  And I keep

        24    telling you that that's not part of this case.  So if part of

        25    his duties were throwing bottles for guards or whatever so

                                                                    I -  24

         1    they could shoot at, then that's his job duty.

         2             MR. STILLEY:  Right.

         3             THE COURT:  But the part that you seem to want to go

         4    to, false imprisonment, is not part of the case.

         5             MR. STILLEY:  I understand there's just two claims

         6    and that's all I'm trying to present evidence.

         7             THE COURT:  If you don't understand, I'm going to

         8    help you a little later on.

         9             MR. STILLEY:  Certainly.

        10             THE COURT:  You know, you hear that story Cool Hand

        11    Luke about a failure to communicate?

        12             MR. STILLEY:  I don't guess I remember that.  We

        13    didn't have TV when I was growing up.

        14             THE COURT:  Well, it is one of the famous lines in

        15    movies.  And, you know, when the prison warden was explaining

        16    about someone's failure to communicate, he had a method of

        17    communicating.  I don't intend to employ that method, but

        18    there's ways to get one's message across.

        19             Other lawsuits.  Other lawsuits, you want to bring

        20    up other lawsuits?  Other boarding schools?

        21             MR. STILLEY:  I don't anticipate bringing up any

        22    lawsuit or other -- well, I don't need to bring up other

        23    boarding schools.

        24             THE COURT:  Denial of bathroom privileges.

        25             MR. STILLEY:  Your Honor, I think that that has to

                                                                    I -  25

         1    be part of it.

         2             THE COURT:  Why?

         3             MR. STILLEY:  That is part of his --

         4             THE COURT:  That was one of his job duties?

         5             MR. STILLEY:  As I explained to you, one of his job

         6    duties was that he was to attack any kid who ran away or got

         7    out of line.

         8             THE COURT:  I'm talking about denial of bathroom

         9    duties for the plaintiff.  That is what defendants have asked

        10    to exclude, any reference to that.

        11             MR. STILLEY:  Well, the jury might think that he got

        12    bathroom breaks, and we need to take off time for bathroom

        13    breaks.  I think we need to show that he rarely got bathroom

        14    breaks and they were very short.

        15             THE COURT:  Fine.  If that's relative to his hours

        16    of work, then fine.  But not to show any cruel or unusual

        17    punishment, okay.

        18             MR. STILLEY:  I understand.

        19             THE COURT:  Okay.  The hours, the hours of work

        20    only.

        21             MR. OLIVER:  Your Honor, may it please the Court.

        22    In that regard the law is very clear, 29 CFR 785.22, I mean,

        23    assuming you have an employer/employee relationship, which we

        24    obviously don't agree to, but the United States Department of

        25    Labor and the regulations 29 CFR 785.22325 require that

                                                                    I -  26

         1    bathroom breaks be counted as part of the hours worked, so

         2    there's no reason to discuss or go into bathroom breaks at

         3    all because they are included in the start to stop time,

         4    finish.

         5             THE COURT:  What about that, Mr. Stilley?  That

         6    seems to be the case.

         7             MR. STILLEY:  Just the typical day, if I just say

         8    Mr. Blair explain to us what's a typical day like.  Tell us

         9    what you did when you got up.  That's going to be part of it.

        10    I need to show that to show the totality of the issues which

        11    you in your order said was proper in a Fair Labor Standards

        12    case.

        13             THE COURT:  Yeah, in terms of what he did for his

        14    day.  But what I was saying was that -- what I initially said

        15    was you should show this in terms of hours of work.  And

        16    Mr. Oliver is correct in terms of that, you know, that is to

        17    be counted, bathroom time is to be counted.  So it's really

        18    not a consideration in terms of hours of work.  Because

        19    whether you do or not do that, it's not a consideration in

        20    terms of your hours of work.  So what would it be for then?

        21    What are we putting it in evidence for?  Why is it in

        22    evidence?  That's the question.

        23             MR. STILLEY:  In order for the jury to understand

        24    the totality of the circumstances.

        25             THE COURT:  What totality is that?

                                                                    I -  27

         1             MR. STILLEY:  Well, is this work for the benefit of

         2    Mountain Park and the defendants or is it something that's

         3    just to help these kids learn things.  And when you go

         4    through the day, unless you just artificially exclude that,

         5    you have to show how much time he got for various tasks and

         6    how much time he got for his own personal use for various

         7    things and what the circumstances were of the work that he

         8    did.  Because there's a dispute between the plaintiff and the

         9    defendant about what the character of this work is.  They say

        10    it's not compensable.  My client said, yes, you were working

        11    me for your benefit and you have to pay me for it.

        12             THE COURT:  Well, I'm just wondering the degree to

        13    which you are or are not allowed rest room privileges, does

        14    that make it an employer/employee relationship?  I mean, does

        15    it tend to show one or the other?

        16             MR. STILLEY:  Certainly it does.  It certainly does

        17    because it shows that there's not humanitarian concern for

        18    these kids and desire -- it's to teach them how to do things.

        19    It's desire to make them work every minute they can possibly

        20    get them to work.  And that's what happened, and that's what

        21    the evidence is going to show.

        22             THE COURT:  Mr. Oliver.

        23             MR. OLIVER:  You know, Judge, that's why we have

        24    Rule 404(b) to exclude these kind of things and 403, that's

        25    why these rules of evidence exist so that we don't have to

                                                                    I -  28