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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEAST DIVISION
JORDAN BLAIR PLAINTIFF
vs. Case No. 1:02CV88CAS
BOB WILLS, AKA BOBBY RAY WILLS, AKA W. B. WILLS,
BETTY SUE WILLS, SAM GERHARDT,
DEBORAH GERHARDT, BO GERHARDT, JULIE GERHARDT,
DREW PARRISH, ROBERT O’BRIANT, ROBERT KENNEDY,
DBA “MOUNTAIN PARK BOARDING ACADEMY,”
and PALM LANE BAPTIST CHURCH, INC.
DEFENDANTS
PLAINTIFF’S BRIEF IN SUPPORT OF RESPONSE TO MOTIONS FOR SUMMARY JUDGMENT
Comes now Plaintiff and for his Brief in Support of Response to
Motions for Summary
Judgment, filed by the various defendants in the instant case, and
states:
BATTERY CLAIMS
Plaintiff
does not claim, and Plaintiff denies, that he suffered only “a” (single) battery
solely at the hands of Defendant Bo Gerhardt and Plaintiff certainly hasn’t claimed,
and Plaintiff denies, that the $10,000 set forth as damages from the separate battery
inflicted on him by Bo Gerhardt is the extent of battery-related injuries and damages.
Since
the beginning of this suit Plaintiff Jordan Blair has spoken of numerous incidents of
common law battery, as stated in Plaintiff’s First Amended Complaint at ¶214,
“Defendants and all of them have conspired together with the purpose and effect of
causing batteries, and the threat of unlawful batteries, upon the Plaintiff and others
similarly situated.”1
Defendant
Bo Gerhardt’s battery of plaintiff was the preliminary battery in a series of almost
constant daily-batteries against plaintiff’s person that began immediately upon
plaintiff’s arrival at Mountain Park Boarding Academy in Missouri, with that battery
committed by Bo Gerhardt being done with the sole purposeful intent of all the defendants
to instill a dreadful and permanent fear in Jordan Blair, and the ‘Bo Gerhardt
battery’ was what can only be described as an ‘indoctrination battery’ used
to intentionally and permanently instill such great fear in Plaintiff so as to force him
into submission in order to make him fearful to even ask for the most basic necessities of
life while in the confines of defendants’ facilities.
Fear
was instilled relating to necessities such as being granted permission to go to the
restroom, which was considered a ‘bothersome request’ by defendants because of
their own rules that were
1 In his Commentaries,
Blackstone observed:
The least touching of another's person wilfully, or in anger, is a
battery; for the law cannot draw the line between different degrees of violence, and
therefore totally prohibits the first and lowest stage of it: every man's person being
sacred, and no other having a right to meddle with it, in any the slightest manner. United
States v. Stewart, 568 F.2d 501, 505 (6th Cir.1978) (quoting 3 Blackstone,
Commentaries on the Law of England 120 (E. Christian ed., 1822)). Case law is in accord
with Blackstone: the intention to do bodily harm is not a necessary element of battery. State
v. Duckett, 306 Md. 503, 510 A.2d 253, 257 (1986). The slightest willful offensive
touching of another constitutes a battery at common law, regardless of whether the
defendant harbors an intent to do physical harm. See Gates v. State, 110 Ga.App.
303, 138 S.E.2d 473, 473-74 (1964) (affirming battery conviction on evidence that
defendant intentionally "tapped" woman on buttocks in public store); Wood v.
Commonwealth, 149 Va. 401, 140 S.E. 114, 116 (1927) (affirming conviction for assault
and battery where defendant fondled fourteen year-old girl).
required to be strictly adhered to, and by defendants’ rules,
going to the bathroom required that Plaintiff be within arms distance of a guard and
watched each and every time he went, even though he was 16 years old and was in a
classroom setting when making such a request.
Every
day that plaintiff was in the confines of the defendants’ facilities carried with it
a battery of his person, an offensive touching by staff members and “orientation
guides,” who at any moment could and would turn a normally non-provocative event such
as having a private pleasant remembrance and smiling about it, into a jerking and slamming
episode by staff members; even being taken by the arm, to guide Plaintiff, was severely
offensive to plaintiff because it carried such a great threat and overwhelming dread of
what might follow.
Plaintiff
was regularly touched in such a manner on a daily basis. Those touches brought the very
real dread that it might turn into a one-sided slamming match with little or no warning.
If one might be violently slammed against a wall over a simple request to be allowed to
contact an attorney or civil authorities, why would not the same thing happen for other
undesired requests. Even with Plaintiff’s training in martial arts, he lived in
constant fear of violence against his person.
It
makes no difference that defendants feel justified in battering the students and
terrorizing the students entrusted to their care. Such criminal treatment, no matter how
meritorious the motives, is not tolerated in Missouri, as proven by what was stated over
100 years ago in State v. Julian, 25 Mo
App. 133 (1887):
Counsel for the defendant make an undeniably impressive appeal in his
behalf, on the ground that his act was the offspring of meritorious motives, and that he
was clearly innocent of any intention to commit a crime. The entire absence of criminal
intent, as this is understood in the law, is generally sufficient to acquit, but, as
popularly understood, it presents itself in various phases. A man may be honestly of the
opinion that a particular act, which the law forbids, ought, for high moral reasons, not
to be forbidden. He may, therefore, be equally honest in the belief that there is no real
criminality in doing the act. But this will not excuse him in the law. A man may do a
forbidden act, honestly believing that he is doing no wrong, from the fact that he is
really ignorant of the prohibitory enactment. But this sort of innocent intent will be of
quite as little service in his defence, since it is presumed always, that every man knows
the law, at least so as to avoid its infraction. It is only when the act done is not
intended to be the act which the law in fact forbids, that innocence of intent will
furnish a sufficient defence. The State v. Reilly,
Mo. App. 392. If the act which is done, and which at the same time is the act
intended to be done, be forbidden by law, then the doer is guilty of offence, whether he,
in fact, knew of the prohibitory law, or not, and whether or not he believed himself to be
doing that which was really meritorious. Such is the case presented by this record. The
defendant did, and at the same time intended to do, an act which is specifically forbidden
by statute law.
FALSE IMPRISONMENT
Defendants
claim the consent of the parents for their detention of Plaintiff. Several legal
principles prevent this from being a legally sufficient defense in this case. One, a
parent cannot delegate powers greater than those held by the parent. In other words, if
the parent is required to provide reasonably necessary medical care, and to refrain from
abuse, these duties may not be evaded by the simple expedient of entrusting the child to a
third party. Second, informed consent is required. Consent obtained by fraud, deceit,
force, or material omissions is not valid consent. Third, consent obtained in violation of
the law is invalid.
Ron
and Janet Blair could not legally have refused Jordan Blair reasonably necessary
prescription medication. It is uncontroversial that Plaintiff was
denied Zoloft and Remeron, two drugs meant to stabilize Plaintiff’s emotional and
mental state, as well as prescription medication for acne. If this same conduct was
committed against Plaintiff in Arkansas, by the Blair’s, with the Blair’s
refusing Plaintiff any opportunity to obtain such necessary medication, they would be
liable under the criminal laws for neglect of their minor child.
The
same is true for beatings; sleep deprivation, and deprivation of bathroom privileges. A
parent who forced his own child to defecate and urinate on himself or herself, in the
presence of other juveniles, while the child repeatedly begged for an opportunity to
relieve bodily wastes, where no legitimate basis for the deprivation existed, would be
liable to criminal penalties and potential loss of custody of the child, either
temporarily or permanently. This conduct is alleged in the verified complaint, as to
another student. The verified complaint also alleges that deprivation of bathroom
privileges caused serious and long lasting discomfort and fear in Plaintiff, as well as
substantial dehydration of his body.
A
parent who forced his own child to do 5th
grade work, when the child was graduated from high
school, forbidding any intellectually stimulating educational activity, while enforcing a
prohibition on contact with the outside world, would likewise run afoul of the criminal
law. Society does not tolerate such aberrant behavior, especially when the educational
needs of a child are denied as a result.
Valid
consent may not be obtained by false, inaccurate, or materially incomplete statements. Iron
Cloud v. Sullivan, 984 F.2d 241 (8th Cir. 1993) (lack of informed consent for medical
tests). Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 984, 108 L.Ed.2d 100
(1990) (lack of informed consent on the part of self admitting mental patient)
In
this case, in recent deposition, both parents stated that if the facts alleged in the
complaint are true, they do not support Mountain Park Boarding Academy, and would not have
knowingly allowed Mountain Park Boarding Academy to commit such acts against their son.
They deny that it was their purpose to prevent Plaintiff from having access to legal
counsel for an appeal. Thus on this ground alone Plaintiff’s false imprisonment claim
must survive summary judgment.
These
very recently taken depositions will be transcribed soon. Plaintiff anticipates that the
pertinent parts will be available at approximately the time that the reply briefs are
available. A separate motion is made to allow these excerpts to be filed as soon as they
are received from the court reporter.
In
Docket #89, Statement of Material Facts by Defendant Wills et al, Defendants’ Exhibit
“K,” the Defendants attach a “limited power of attorney” signed by Ron
and Jannett Blair.2 This document purports to give an open ended power of attorney,
subject only to revocation by the parent. However, Missouri law provides:
RSMo 475.024. A parent of a minor, by a properly executed power of attorney, may delegate to another individual, for a period not exceeding one year, any of his powers regarding care or custody of the minor child, except his power to consent to marriage or adoption of the minor child. (Emphases added.)
The power of attorney should be disregarded as not in compliance with
Missouri law concerning the maximum length of a power of attorney for a minor child. See
also RSMo 453.110, which provides:
RSMo 453.110.
Such document
was not signed by the Blairs on the 24th, as the
Blairs weren’t Missouri on that day, thus the notarization is improper, but that is
not the point here.
Defendants and plaintiff’s parents admit that Plaintiff was
adjudicated delinquent and by so admitting, they are lawfully required to abide by the
terms of the Interstate Compact on the Placement of Children (ICPC): In both Missouri and
Arkansas (and Florida, too), the Interstate Compact on the Placement of Children, Article
VI, Institutional Care of Delinquent Children, and pertinent to plaintiff Plaintiff’s
out of- state placement, it says:
A child adjudicated delinquent may be placed in an institution in
another party jurisdiction pursuant to this compact but no such placement shall be made
unless the child is given a court hearing on notice to the parent or guardian with
opportunity to be heard prior to his being sent to such other party jurisdiction for
institutional care and the court finds that:
1. Equivalent facilities for the child are not available in the sending agency’s jurisdiction;
2.
Institutional care in the other jurisdiction is in
the best interest of the child and will not produce undue hardship.
In
Docket #89, Statement of Material Facts by Defendant Wills et al, Defendants’ Exhibit
“K,” the Defendants attach a copy of the order from the Crawford County Juvenile
Court. No such findings are made. Therefore, the order was not in compliance with binding
authority within the jurisdiction in which it was entered.
Plaintiff
understands that the Defendants are relying on parental consent, not a court order. They
have already foreclosed reliance on a court order in denying that they knew about the
order at an early date, in order to defeat Plaintiff’s civil rights claim. However,
Plaintiff believes that it is appropriate to show, out of an abundance of precaution, that
the court order was issued in violation of various binding legal authorities, and that the
court order made no mention whatever of any commitment to a facility in Florida. See page
7 of said order. In Jordan Blair’s errata sheet, he corrected his earlier
misstatement, at page 139 of his deposition, that he had been court ordered to Palm Lane
Baptist Church, Inc. See page 6 of errata sheet, Exhibit “I” of Docket entry 89.
FAIR LABOR STANDARDS ACT
Defendants
both cite Walling v. Portland Terminal Co., 330 U.S. 148 (1947); Marshall v.
Regis Educ. Corp., 666 F.2d 1324 (10th
Cir. 1981); and Bobilin v. Board of Education 403
F. Supp. 1095 (D. Haw. 1975). Apparently this pretty well exhausts the ingenuity of
defense counsel on this issue.
In
Walling, individuals were trained for about a week for the job of yard brakeman for
a railroad. It was a voluntary program, although one could not get the job without
learning the skills necessary to do the job. Some pay was involved. The trainees often
were of no help and actually increased the burden on regular employees on many occasions.
This
case is different from all the other cases in that Plaintiff was de facto incarcerated,
forbidden to leave under threat of punishment, and forced to work at whatever he was told
to do by his superiors. He does not complain over silly things like having to make his
bed, clean his personal space, and do minor chores.
He
does complain that he was forced to work extended hours doing things like cutting pastures
with a weed hook, digging ponds with a shovel, working on equipment, fixing fences, and
herding cattle, all for no pay, in harsh working conditions, without adequate bathroom breaks, which in turn forced him to
ration his own water intake in the hot Florida sun. There is no comparison between
Plaintiff and any person in the cases cited.
Quoting, in relevant part, Marshall v. Regis Educ. Corp., 666
F.2d 1324 (10th Cir. 1981): RA’s [student resident-hall assistants] were required to
participate in training programs and were responsible for miscellaneous administrative
tasks such as telephone coverage, mail distribution, unlocking doors and the like.
RA’s, moreover, had broader responsibilities in maintaining discipline and order
within the halls and in encouraging participation in campus activities. Although RA’s
did not work a specified number of hours per day, they were generally available in the
halls for an estimated twenty hours a week. In order to keep their status as RA’s
they were required to maintain a specified grade point average. In exchange for the
performance of these duties, RA’s received a reduced rate on their rooms, the use of
a free telephone, and a $ 1,000 tuition credit.
...
Our holding that RA’s are not employees does not require the conclusion that no student working at the College would be within the scope of the FLSA. No such inference should be drawn. There are undoubtedly campus positions which can be filled by students and which require compliance with the FLSA. Students working in the bookstore selling books, working with maintenance, painting walls, etc. could arguably be “employees”. The query is whether the RA’s at Regis are more like sales clerks or more like students in other campus programs receiving financial aid.
Plaintiff
received nothing for his work. He did not get a better or cheaper room, or better food, or
reasonable bathroom breaks, or more sleep. His parents got no tuition break. Plaintiff
didn’t even have use of a telephone to call an attorney for pressing legal matters of
great significance in his life.
Furthermore,
forcing someone to dig a pond with shovels, or herd cattle, or build fence, or mow
pastures with a weed hook, are all employment, or at least activities that a reasonable
jury could find to be employment, as contemplated by the FLSA, even under the cases
located by the Defendants. They may not be the most productive uses of labor, but the
Defendants made their choices on how to use the labor, and they are not duty bound to pay
for it, to the extent that payment is required under the law.
Bobilin v. Board of Education 403 F. Supp. 1095 (D. Haw. 1975)
involved minor
requirements, not more than one day a month or 7 days per school year.
The students were required to work in the cafeteria. As the Court noted:
A mental institution, this Court believes, is more likely to be the source of abuse in the Thirteenth Amendment context because of the nature of the custodial situation. Patients more often than not are institutionalized and forgotten with little, if any, voice given them in improving their living conditions. Because of the potential for abuse, the courts have been less hesitant about structuring judicial remedies in this context. The public schools, however, are open institutions, which are populated by children who remain for only a portion of the whole day and whose interests are assiduously protected by their parents and by carefully drawn regulations, which enumerate and protect their rights. Consequently, this Court should be wary of imposing its influence into the operation of a statewide school system. (Emphasis added)
The
present case presents a situation where the potential for abuse is very high, probably
higher than in a mental institution. Vulnerable juveniles are deprived of counsel, contact
with the outside world, and contact with legal authorities that might bring judicial
relief through legal processes. This Court should not hesitate to allow a jury to
determine the extent of compensable labor and require the Defendants to pay that amount.
WHEREFORE, Plaintiff prays that the motions for summary judgment be
denied, and for such other and further relief as may be appropriate.
By: /s/ Oscar Stilley
______________________________
Oscar Stilley, Attorney at Law
Central Mall Plaza Suite 520
5111 Rogers Avenue
11
Fort Smith, AR 72903-2041
Attorney for Plaintiff
479 996-4109
479 996-3409 Fax
oscar@ostilley.com email