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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 RESPONSE TO STATEMENT OF MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ SUMMARY JUDGMENT MOTIONS, AND STATEMENT OF FACTS AS TO WHICH A GENUINE
ISSUE FOR TRIAL REMAINS Comes now Plaintiff and for Plaintiff’s Response to Statement of
Material Facts in Support of Defendants’ Summary Judgment Motions, and Statement of
Facts as to Which a Genuine Issue for Trial Remains, as to those statements of facts
alleged in Docket #89 and Docket #90, and states: Docket #89 1.
Plaintiff denies paragraph 1, on the ground that
Mountain Park Boarding Academy is in fact a for profit business operating under a church
name.
2.
Denied for the same reason, also this allegation
is not material to the decision of the cause.
3.
These facts are not material but are admitted
except as to the implication that Mountain Park Boarding Academy is really a
“ministry” rather than a for profit business.
4.
These facts are not material but are admitted
except as to the implication that Palm Lane Baptist Church, Inc. is really a
“ministry” rather than a for profit business. 5.
Paragraph 5 is admitted.
6.
Paragraph 6 is admitted.
7.
Paragraph 7 is denied. Plaintiff was arrested for
being a runaway, after having been held for 7 days in a local mental facility without the
legally required detention hearing. Plaintiff’s father then made a complaint of terroristic threatening and
breaking and entering into Plaintiff’s family home. In depositions taken recently,
(transcript not yet available) Ron Blair admitted at least some concern that he might face
accusation for his assault and battery on his son, which left a mark on Plaintiff’s
neck.
8.
Paragraph 8 is denied. Ron Blair was the sole
accuser and instigator of the criminal charges in the complaint. Furthermore, the
terroristic threatening charge was so frivolous that the supposed victim, Timmy Blair, did
not even remember the incident when he was questioned at depositions. He did remember an
incident that happened much earlier, and recounted that incident, but did not remember the
supposed incident involved in the charges he faced on October 24, 2001.
9.
Paragraph 9 is denied. See above. Furthermore, in
depositions, both Ron and Jannett Blair admitted that they would not have sent Plaintiff
to Mountain Park Boarding Academy if they had believed that Plaintiff would be subjected
to the mistreatment alleged in Plaintiff’s complaint.
10. Paragraph 10 is denied. This allegation is false and self serving. Mr. Blair brought instigated these false charges himself. Furthermore, he admits that any damage done by Plaintiff’s entry into the family home was sufficiently slight that he was able to fix it himself. He had no knowledge that Plaintiff took anything except his own possessions from the family home, mainly clothes and personal items.
11. Plaintiff admits that he
was adjudicated delinquent.
12. Paragraph 12 is denied.
At page 5 of the order attached to the Defendants’ Statement of Facts, the Court
orders that “Said Juvenile is hereby ordered to successfully complete
inpatient/residential treatment at Baptist Boys Academy (sic) in Missouri.” The claim
that the term was “12 months” is a complete fabrication shown to be false by the
record. Furthermore, at Defendant’s Exhibit “J” on the bottom of the second
page, it shows the “date of withdrawal” for Plaintiff was November 10, 2001.
November 10, 2001, is the exact date upon which Plaintiff was awarded his high school
diploma. Thus Plaintiff had completed the program at “Baptist Boys Academy,” was
a high school graduate, and had discharged all his obligations concerning the Court’s
order, even assuming same was valid.
13. Paragraph 13 is denied.
Interpreting “Baptist Boys Academy (sic) in Missouri” to give no direction as to
the geographic location of any confinement is illogical to say the least.
14. Paragraph 14 is admitted
as to the statement that Ron and Jannett Blair had already signed the papers to send
Jordan Blair to Mountain Park Boarding Academy on October 20, 2001, because this fact
appears to be true. However, Plaintiff objects to the statements of Ron and Jannett Blair
as insufficient for consideration on motion for summary judgment. These statements are not
affidavits. The mere allegation at the end, to the effect that the statement was made
“under penalty of perjury” provides no assurance that the document was actually
signed by the person whose name appears thereon. Furthermore, a notary or other proper
officer should appear not only for purposes of identification of the affiant, but also in
ensure that the witness understands that he or she is making the statements in the
document under oath. Sam Gerhardt falsely notarized the signatures on Defendants’
Exhibit “K” as though the Blairs appeared before him on October 24, 2001, the
day of the commitment order. Defendants’ Exhibit “J” has a signing date of
October 20, 2001, and a commitment date of October 24, 2001. The truth of the matter is
that Mr. Gerhardt falsely attested that the Blairs appeared before him on October 24, 2001
when in fact they did not and could not have done so on that day.
15. Paragraph 15 is admitted.
However, in their deposition testimony, they indicated that they would not have granted
such powers over their son if they had believed that he would be mistreated in the manner
alleged in his complaint. Therefore, the question of whether or not Mountain Park Boarding
Academy personnel obtained informed consent remains for the jury.
16. The declaration of Sam
Gerhardt is likewise defective, in that no notary appeared to verify the identity of Sam
Gerhardt and to ensure that compliance with the requirements of an oath.
17. Paragraph 17 is denied.
Ron and Jannett Blair may have desired that their son attend a facility as described by
the promoters of Mountain Park Boarding Academy, but stated in deposition that they would
not have sent Plaintiff to Mountain Park Boarding Academy if they had known that
mistreatment of the type alleged in the complaint would be involved. Thus the question of
informed consent remains for the jury.
18. Paragraph 18 is denied.
Apparently Mr. Blair made all payments to Mountain Park Boarding Academy.
19. As to paragraph 19, it is
admitted that Ron Blair paid money to Mountain Park Boarding Academy. The remainder of the
paragraph is denied.
20. Paragraph 20 is admitted.
21. Paragraph 21 is
admitted.
21. Paragraph 22 is admitted.
However, students do much more than the listed work activities.
22. Paragraph 23 is denied.
23. At Mountain Park Boarding
Academy, work is used to condition the student to obey without thinking. Work is
frequently done in the most absurdly inefficient manner, but students are not allowed to
complete the task in a sensible and efficient manner.
24. Paragraph 24 is admitted.
However, this list is not exhaustive. Plaintiff had to do much work in excess of that
listed in paragraph 24.
25. Paragraph 25 is admitted,
although “confined” or “incarcerated” would be the more descriptive
term.
26. Paragraph 26 is denied.
In paragraph 214, Plaintiff alleges: “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.” Whether or not
Plaintiff was “slammed” or “hit” is not the question. The question is
whether the Defendants committed and threatened to commit offensive touching of the
Plaintiff, and it is clear that Plaintiff was subjected to actual and threatened offensive
touching during his stay at Mountain Park Boarding Academy and Palm Lane Baptist Church,
Inc.
27. Paragraph 27 is denied.
Defendants at both facilities prevented Plaintiff from getting prescription medicine and
other needs, under threat of battery and other punishment. The batteries and threats of
batteries caused emotional distress, nightmares, aggravation of existing medical
conditions such as acne, difficulty with the digestive tract. Docket #90 With respect to the numbered paragraphs in Docket #90, beginning at
page 3, Plaintiff states: 28. Paragraph 1 is
admitted.
29. Paragraph 2 is
admitted.
30.
Paragraph 3 is admitted with the caveat that the
arrest was solely for being a “runaway.” Ron Blair then made the charges and
supplied the sole prosecuting witness for the other two accusations.
31.
As to Paragraph 4, Mr. Blair orchestrated the
bringing of both charges. There was no “fear” that he would be sent to an
Arkansas Detention Facility, they had enrolled Plaintiff on the 20th of October, 2001,
signing documents before Sam Gerhardt and giving Sam Gerhardt money on that day. They had
already decided where to send Plaintiff and wished merely to make it appear that they were
forced to this action by a ruling of the court.
32. Paragraph 5 is
admitted.
33. Paragraph 6 is
denied.
34.
Paragraph 7 is admitted, but Ron and Jannett Blair
would not have signed these documents if they had believed that their son would have
suffered the treatment alleged in his complaint. These documents were not obtained by
informed consent.
35. Paragraph 8 is
denied.
36. Paragraph 9 is
denied.
37.
Paragraph 10 is admitted. However, one should not
conclude from this statement that any payments were made to Palm Lane Baptist Church, Inc.
38. Paragraph 11 is admitted.
38.
Paragraph 12 is denied. Palm Lane Baptist Church,
Inc. is a de facto for profit facility.
40. Paragraph 13 is
denied.
41. Paragraph 14 is
admitted.
42. Paragraph 15 is
admitted.
43. Paragraph 16 is
admitted.
44. Paragraph 17 is
denied.
45.
Paragraph 18 is denied inasmuch as the tort of
battery is not so narrowly defined as the Defendants suggest.
46.
Paragraph 19 is denied.
Additional material facts, and facts with respect to which a genuine
issue of material fact remains for trial. 47.
Plaintiff alleges various batteries and threats of
batteries, including the standing threat of batteries for acts which would not give the
Defendants any legal right to commit battery against the Plaintiff, in his verified
complaint. A verified complaint is equivalent to an affidavit for purposes of summary
judgment. Roberson v. Hayti Police Dept., 241 F.3d 992 (8th Cir. 2001) Watson v.
Jones, 980 F.2d 1165, 1166 (8th Cir. 1992).
48.
Plaintiff alleges in his verified complaint
numerous requirements that he work at jobs far removed from personal hygiene, personal
chores, or common chores necessary for daily existence. Defendants go so far as to admit
that Plaintiff was required to repair fences, dig or enlarge ponds, and round up cattle
for other persons. (Docket #90 @ paragraph 16) Furthermore, Plaintiff was required at all
times, under threat of punishment, to report escape attempts, and to prevent escapes, in
essence converting him into an unpaid security guard.
49.
Defendant Palm Lane Baptist Church, Inc. et al
make one bare, unsworn allegation on page 6 of Docket #90, motion for summary judgment of
Palm Lane Baptist Church, Inc., Robert Kennedy and Drew Parrish, to the effect that
neither Parrish nor Kennedy are employers under the act, and because “...Jordan Blair
was not an employee under the act under the activities engaged in by him did not have a
substantial impact on interstate commerce.” Besides not making much sense, this
statement is wholly unsupported by any affidavit or deposition testimony or other material
properly supportive of a motion for summary judgment. Plaintiff does not seek wages from
Kennedy or Parrish arising out of activities in Florida because Palm Lane Baptist Church,
Inc., appears to be the employer, with Kennedy and Parrish acting as agents of the
incorporated employer. Plaintiff has alleged in his verified complaint an income stream of
approximately $2 million annually, as well as a substantial impact on interstate commerce.
Since the Defendants have not challenged this testimony in any way short of bare denials
in an unverified motion, it remains as a proper issue for trial.
50. Plaintiff will shortly be able to supply deposition testimony to the effect that Ron and Jannett Blair would not have agreed to send Jordan Blair to Mountain Park Boarding Academy if the facts alleged in Plaintiff’s verified complaint were the truth. Further, Ron Blair admitted that he had at the time of Jordan’s departure to Mountain Park Boarding Academy at least some concern that Jordan Blair might report him to authorities for choking Jordan Blair and causing leaving a mark on Jordan Blair’s neck. Either of these factual situations would demonstrate a genuine issue would remain for trial, namely whether or not Mountain Park Boarding Academy personnel obtained informed consent from Ron and Jannett Blair, to gain physical possession and control of Jordan Blair, and whether the consent of the Blairs was for an unlawful purpose, namely to prevent the reporting of suspected child abuse. Thus, a genuine issue remains for trial on the question of whether or not Jordan Blair was falsely imprisoned.
51.
In addition, in Sam Gerhardt’s deposition
testimony, pages 33-44, attached hereto as Exhibit “1" Sam Gerhardt admitted
that one of the reasons that Jordan Blair was sent to Florida was that he would have had
more legal rights in Missouri; admitted that Jordan Blair was not consulted and that no
permission was obtained for the transfer to Florida; and admitted that he and others with
Mountain Park Boarding Academy would from time to time advise parents of ways that they
could send their children out of the country for a period of time; and admitted that
Jordan Blair could not leave the Mountain Park Boarding Academy property without being
restrained, with possible swats or other adverse consequences.
52.
Although it appears that Plaintiff admits in
deposition that he was court ordered to Palm Lane Baptist Church, Inc., that is not
correct. In his errata sheet he corrected his misstatement. See Docket #89, Exhibit
“I” page 6 of errata sheet. Furthermore, Defendants can hardly claim that they
relied on this court order to send Plaintiff to Florida, having previously denied
knowledge of the order at the time, in so doing defeating the Plaintiff’s civil
rights claims. Plaintiff’s claim that he was falsely imprisoned in Palm Lane Baptist
Church, Inc. remains for trial.
53.
Plaintiff was graduated from high school on the
basis of work completed before being sent to Mountain Park Boarding Academy, although the
diploma was dated November 10, 2001. Plaintiff’s 10 verified complaint at 174.
54.
These statements of facts to be determined at
trial are not exhaustive. Plaintiff relies on the allegations of the verified complaint,
but does not seek to restate all these allegations, as such would not be likely to assist
the Court in its decision of the motions for summary judgment. These statements are meant
to state in a concise manner facts which defeat the Defendants’ motion for summary
judgment, with the least time requirements for the Court and court personnel. WHEREFORE, Plaintiff prays that the motions for summary judgment be
denied, and for such other and further relief as may be appropriate.
CERTIFICATE OF SERVICE I, Oscar Stilley, by my signature above certify that I have this December 24, 2003 served the defendants with a copy of this pleading electronically by CM/ECF to: John Oliver, Attorney at law, Oliver, Oliver, & Waltz, PO Box 559, Cape Girardeau, MO, 63702-0559; and John Briggs, Attorney at law, Brown & James, P.C., 1010 Market Street, 20th Floor, St. Louis MO 63101-2000. |