Petition for Writ of Certiorari — Blair v. Willis, (2005) (No. 845)

5

Reported symptoms and side-effects of prior detainees

give strong indication that Respondents have pervasively

used Thorazine on the residents or each facility that they

have operated. Thorazine is well known to cause cessatiun

of menstrual periods. Every facility operated by the

Respondents has had pervasive cessation of menses for the

first 6 to 12 months of the stay for females, generally with

lighter periods afterward. Respondents left Mississippi

shortly after the entry of a court order commanding them

to inform parents when menstrual periods ceased for at

least 3 consecutive months.

Petitioner’s parents signed authorizations to send

Petitioner to Mountain Park. However, those authoriza-

tions were made in flagrant violation of Missouri law.

Petitioner’s parents never signed any documentation

whatsoever authorizing Petitioner’s transportation to

Florida.

At the time that Petitioner was sent to Mountain

Park, he had a high school diploma through the Acceler-

ated Christian Education (ACE) program. Petitioner told

this to the Respondents, who mocked him and put him in

5th grade level work.

Petitioner was subjected to brainwashing techniques.

He was systematically denied sleep, denied bathroom

privileges, forced to listen to harangues about the Respon-

dents’ religious ideas for hours, threatened with beatings

or other punishment for the slightest infraction, forced to

work as late as 1:00 to 2:00 AM, and yet forced to rise a

few hours later at 5:00 or 5:30 AM. At no time during

Petitioner’s captivity did Petitioner ever feel rested.

Petitioner was taken on forced running marches.

During one such march, another detainee named Duc

Nguyen begged to go to the toilet but was prohibited from

doing so although the boys were in a private wooded area.

Petitioner could only watch helplessly as Nguyen was

forced to urinate and defecate in his clothing. Nguyen was

forced to apologize to the rest of the group, who were

instructed to mock and ridicule the boy.

6

Petitioner was told and shown that the slightest

failure to immediately obey any command, however

extreme, was likely to bring a beating or other severe

punishment. Any expression of sympathy to Nguyen, or

any of a number of other boys forced to urinate or defecate

in their clothing, would have prompted a beating or other

severe punishment.

Until a murder of a detainee named Will Futrelle in

1996, the Respondents generally gave direct orders to one

or more students to beat or otherwise discipline another

student. After the murder, the Respondents generally gave

the orders for beatings and other mistreatment to inter-

mediaries, who would then use as many other detainees as

might be required to impose punishment upon the object of

Respondents’ wrath.

Respondents formerly operated at least four other

facilities for “troubled” teens. Prior to Mountain Park, the

most recent was a facility in Mississippi called Bethesda

Girls Home. On February 25, 1987, an order was entered

which among other things required the Respondents to

inform parents when a girl misses her period for at least 3

months.

Respondents maintained a student population of 250-

300 students for many years, charging $1,200 per month.

Their claimed cost of operations, as claimed in sworn

statements in litigation subsequent to the instant case, is

$500 per student. Respondents customarily “hire” former

students, generally for a salary of about $300 per month

for approximately 80 to 100 hours per week.

In late 2003 and 2004, Respondents became aware

that Petitioner and his counsel were finding students as

they left Mountain Park or Palm Lane, and obtaiaing drug

tests. Respondents were unable to maintain their abusive

practices and prevent runaways, despite locked doors and

tall fences topped with concertina wire.”

* Petitioner suspects that the drugging, and cessation of menses,

stopped just before Mountain Park and Palm Lane were closed. There

(Continued on following page)

7

Respondents then shut down the facility, telling

reporters that “its just time to move on.” However, Re-

spondent is aware of no instance in which the Respondents

closed down a facility such as Mountain Park, earning

more than $2 million in annual net profits, except where

Respondents were forced to cease operations due to legal

action or increased public awareness of Respondents’

abusive tactics. Each time, the Respondents open another

facility somewhere else and continue on with the same

abusive practices.

Respondents say that their enrollment had declined

from over 250 to about 40 students at the time the facility

was closed down.* Furthermore, Respondents have claimed

to “lease” the facility to a third party, which also runs a

juvenile detention operation apparently quite similar to

their own.

Petitioner brought this action for among other things

violation of civil rights under 42 U.S.C. § 1983, false

imprisonment, violation of the Fair Labor Standards Act

(FLSA) and battery. The false imprisonment and 1983

claims were dismissed before trial. The FLSA claim was

dismissed during the defense case at trial. The battery

claim was decided by the jury, with an award of $20,000

against Bo Gerhardt.

The Eighth Circuit upheld the dismissals, but re-

versed the award of $20,000 and remanded for a new trial

on the claim of battery.

was a rash-of runaways at that time, which suggests that the use of

Thorazine was stopped. It has been impossible to obtain reliable

information to determine the patterns of cessation of menses.

* Respondents testified that if Mountain Park ceased operation,

the land and facilities on the land, would have to be turned over to a

non-profit organization, bolstering their claim that Mountain Park was

a non-profit organization. Subsequent to this testimony, the Mountain

Park property and facilities were listed through a real estate company

for sale to any interested buyer with an asking price of almost three

million dollars. The listing was published on the Internet — complete

with photos and the sale price.

8

REASONS FOR GRANTING THE WRIT

1) Isa private reform school exempt from the Fair

Labor Standards Act (FLSA) where it held Peti-

tioner, then a 17 year old high school graduate,

to forced labor at such jobs as fence building,

pond digging, cattle herding, etc., based upon

the bare assertion that the labor was “primar-

ily” for the benefit of the Petitioner?

Key facts pertinent to this question include:

¢ Petitioner was a high school graduate, using

the same curriculum as that used by Re-

spondents. The Respondents were fully

aware of that fact.

e Petitioner was court ordered to complete the

program at Mountain Park. Petitioner com-

pleted the program at Mountain Park, by

the Respondents’ own documentation, less

than 30 days after his arrival.

e Petitioner was taken against his will to

Palm Lane Academy, Inc., a Florida corpora-

tion owned by some of the Respondents, and

forced to work 30 to 40 hours per week for

the corporation. (App. 18)

¢ Respondents consistently advertise that

they are a “college preparatory” high school,

and “nothing more than the name implies.”

The seminal case on the right of jury trial in FLSA

actions is Lorillard v. Pons 434 U.S. 575, 580, 98 S.Ct. 866,

870 (1978). There the Court said: “ ... Long before Con-

gress enacted the ADEA, it was well established that there

was a right to a jury trial in private actions pursuant to

the FLSA....”

The panel opinion says that “chores” cannot constitute

compensable labor under FLSA. Petitioner agreed that

such chores as cleaning the dorm and his personal space

was not compensable. (TR Vol. II, p. 8-9) Petitioner

sought compensation for building fences, clearing fields

9

and fencerows, doing carpentry and electrical work,

digging ponds, all under threat of violence. Petitioner was

forced to work as late as 1:00 AM, and rise later the same

day at 5:30 AM for more work. (TR Vol. II, p. 10)

The District Court ruled that:

.. The evidence at trial demonstrated that

Blair’s chores were an integral part of the educa-

tional curriculum of Mountain Park and Palm

Lane and were primarily for the benefit of the

plaintiff. The chores performed by Blair

have an economic value to the school be-

cause they save the school the cost of hiring oth-

ers to perform the chores. Looking at the

totality of the entire economic situation,

however, it cannot be said as a matter of

law that these economically valuable activi-

ties could reasonably be considered em-

ployment under the FLSA, which would

require the schools to pay minimum wages to its

students.

(Emphases added)

The panel opinion says:

... We review a grant of judgment as a matter of

law de novo, drawing all reasonable inferences in

favor of the nonmoving party. Walsh v. Nat!

Computer Sys., Inc., 332 F.3d 1150, 1158 (8th Cir.

2003). Judgment as a matter of law is proper

when “there is no legally sufficient evidentiary

basis for a reasonable jury” to find in favor of the

nonmoving party. Fed. R. Civ. P. 50(a); see Walsh,

332 F.3d at 1158.

In this case, Blair’s activities at the schools

were not “work,” and the Appellees were not

“employers,” as contemplated under the FLSA.

School administrators testified that chores

were an integral part of the educational

curriculum at Mountain Park and Palm

Lane, and those chores were primarily for

10

the students,’ not the Appellees,’ benefit.

Administrators further testified that the chores

were intended to instill in each student a sense

of teamwork, responsibility, accomplishment, and

pride. Although having students perform chores

helped defray certain costs that the Appellees

would have incurred had they hired employees to

perform those tasks, looking at the totality of the

economic circumstances, there is no evidence on

which a reasonable jury could conclude that

Blair’s activities constituted employment under

the FLSA.

(Emphasis added)

The panel only considered and decided a question very

different from the one posed by Petitioner. Nothing was

said about Petitioner’s testimony, facts, or even his theory

of the case. The panel ignored the fact that Petitioner was

a high school graduate; that Petitioner sought pay only for

tasks that could not reasonably be considered “chores”;

that Petitioner was court ordered to Mountain Park and

not Palm Lane Academy; that Petitioner as a mature

minor was entitled to his liberty in the state of Missouri on

his seventeenth birthday, November 17, 2001; that Peti-

tioner’s father had an axe to grind with Petitioner; that

the parental delegations all violated state law; and that

there was no written delegation of parental authority with

respect to Palm Lane Academy, Inc., whatsoever.

Petitioner was entitled to a jury determination of the

facts with respect to his claim for wages under the FLSA.

The 7th Amendment secures Petitioner’s right to a jury

trial. Under the dictates of Morrissey v. Brewer, 408 U.S.

471, 481 (1972), Petitioner had a due process right to at

least have Petitioner’s contentions heard. Neither the

District Court nor the Eighth Circuit addressed the

questions actually raised by Petitioner.

2)

11

Is a court order committing Petitioner to

Respondents’ private reform school, with the

Respondents’ full knowledge that the juvenile

was sent by order of an Arkansas court, suffi-

cient to permit a finding of “state action” for

purposes of 42 U.S.C. § 1983?

Key facts pertinent to this question include:

Petitioner was committed to Mountain Park

by court order.

Respondents were aware of the court order.

They took Petitioner from the custody of a

sheriff, were told about the court order,

threatened Petitioner if he said anything

further about the court order, and later

signed probation papers and sent them to

the Arkansas juvenile court.

Petitioner was denied counsel, the right to

appeal, and access to his own juvenile re-

cord, all by or at the direction of Respon-

dents.

Respondents’ facilities have been found to be

detention facilities. Respondent Bob Wills

has in the past been held in contempt for

flouting a court order requiring him to dis-

close his authority to detain minors, and for

removing minors from the state in violation

of a court order. See Jn the Interest of M. I., a

Minor, 519 So. 2d 433 (Miss. Sup. Ct. 1988)

In C.K. v. Northwestern Human _ Services,

F.Supp.2d 447, 449 (E.D. Pa. 2003), the Court said:

The parties have not cited and we have not

found any Supreme Court or Third Circuit deci-

sion which has decided whether a private facility

such as Northwestern Academy acts under color

of state law when it has in its custody a delin-

quent child pursuant to a court order. There are,

however, a number of decisions that point the

way.

255

12

The District Court in that case went on to find, under

circumstances similar to those in the case at bar, that the

private entity was in fact acting “under color of state law”

and denied the motion for summary judgment.

The Eighth Circuit opinion below can be fairly said to

contradict Conner v. Donnelly 42 F.3d 220 (C.A.4 (Va.)

1994), where the Fourth Circuit ruled that a physician

who chose to treat a prison inmate acted “under color of

state law.” The panel opinion is also at odds with West v.

Atkins 487 U.S. 42, 108 S.Ct. 2250 (1988), where the

Supreme Court ruled the same on a similar question.

Therefore, this case presents a conflict between the cir-

cuits and a likely conflict with Supreme Court precedent,

concerning what constitutes state action with respect to

§ 1983.

The panel opinion states that the Appellees were not

acting “under color of state law” despite the fact that the

District Court’s order says “On October 24, 2001, Blair was

adjudged a juvenile delinquent and ordered to successfully

complete in-patient residential treatment at Baptist Boys

Academy in Missouri.” (App. 7) The panel opinion claims

that there was “no showing that material facts were

disputed or missing from the record.”

The panel opinion totally ignored several important

factors of the Crawford County, Arkansas Juvenile Court

order. First, Petitioner was ordered for treatment. Second,

Petitioner was ordered to a facility located in Missouri, not

to a facility anywhere the Respondents wanted to send

Petitioner. Third, while the pane] acknowledges that the

requirement was “a condition of probation,” it failed to

recognize or consider that there was a separate document

entitled, Terms and Conditions of Formal Probation, which

set forth among others these particularly pertinent re-

quirements at Page 2.

8. If it should become necessary for the Juve-

nile to leave the community where he lives, he

will be expected to notify his Probation Officer in

advance.

13

11. The Juvenile will submit to random drug

tests through the Juvenile Office.

13. The Juvenile will not carry any weapons.

Petitioner sought his complete juvenile record by way of

subpoena in an action ancillary to the lawsuit below. This

subpoena was quashed, and the Eighth Circuit order

denied review on grounds that the question was moot,

since the underlying case was then on appeal. Petitioner

still has not seen a copy of the entire probation document

that he was required to sign.

Respondents prevented Petitioner from notifying his

probation officer that he was leaving the state of Missouri

and from reporting for drug tests. They also forced Peti-

tioner to handle firearms as part of a hunter safety class,

without permission from the probation officer.

Sam Gerhardt signed the probation papers saying

that he would help Petitioner comply with his probation

terms. In fact, Petitioner was prevented from complying

due to the rules of the Respondents which totally pre-

vented Petitioner’s contact with anybody in the outside

world, other than his parents. Sam Gerhardt drafted the

“Parent/Student Handbook,” which the students were not

allowed to see, as his master’s thesis in college.

The panel opinion rests its opinion on the fact that

boilerplate language upon which the order committing

Petitioner to Mountain Park contains the w.rds “or like

facility.” (Italics in original) (App. at 7)

The Eighth Circuit on November 16, 2004 dismissed

an appeal of the denial of an attempt to obtain a copy of

the juvenile record of Petitioner, at Petitioner’s expense.

Blair v. Wills, 112 Fed. Appx. 546 (C.A.8 (Ark.) 2004) The

unpublished order said the fact that the principal case was

on appeal rendered the appeal of the ancillary matter

moot. Petitioner believes that the Crawford County Juve-

nile Court specified Mountain Park in his order stated

from the bench. Petitioner should not be denied discovery,

then denied relief based upon the inadequacy of proof of a

legal claim.

14

3) Is a private detention facility answerable for

false imprisonment of a mature minor, in the

absence of any legally valid delegation of au-

thority to detain the minor?

The key facts pertinent to this claim are:

e Petitioner was prevented from contacting an

attorney for post-conviction legal assistance;

obtaining prescription medication for severe

acne; obtaining employment; obtaining ade-

quate sleep time and toileting priv'leges; or

applying to post-secondary «ducational fa-

cilities and applying for post secondary edu-

cational loans;

¢ Respondents prevented Petitioner from con-

tacting his probation officer;

* Petitioner was forcibly transported from

Missouri to Florida, without any written pa-

rental or court approval, and kept there

from his 17th birthday until his escape some

5 months later.

e All written parental delegations of author-

ity: 1) Referenced Mountain Park and noi

Palm Lane, 2) Flagrantly violated state law,

and 3) Made no mention of any right to de-

tain Petitioner outside regular school hours.

¢ The consents obtained from Petitioner’s par-

ents were obtained through fraud and the

withholding of material facts.

The key legal contention is that neither the District

Court nor the Eighth Circuit considered the question of

whether a delegation of parental authority that clearly

violates state law would nonetheless suffice to relieve the

Respondents of any potential liability for false imprison-

ment. Resolution Trust Corp. v. Home Sav. Of America,

946 F.2d 93 (8th Cir. 1991) holds that such contracts are

unenforceable, and confer no rights. Furthermore, neither

15

court analyzed the consequence of the lack of informed

consent, or actual fraud upon the parents, on the minor’s

right to sue for false imprisonment.

In Mississippi, Respondents were denied a motion to

dismiss a lawsuit including a claim for false imprison-

ment. Candy H. v. Redemption Ranch, Inc., 563 F.Supp.

505 (D.C. Ala. 1983). The court in that case also opined

that the evidence, even at that early stage, would preclude

summary judgment in favor of Respondents. Respondents

have conceded that their operations at Mountain Park and

Palm Lane are similar to the operations at their previous

facilities.

The panel notes that false imprisonment requires

confinement without consent and without justification.

The only defense here is justification. In the December 2,

2002 opinion and order dismissing the § 1983 claim, the

District Court said that “ ... the Arkansas court’s order

did not place Blair in the defendant schools, but left the

choice of school up to his parents... .” (App. 43)

At page 4 of the District Court’s March 2, 2004 memo-

randum regarding the false imprisonment issue, the

District Court said “ ... On October 24, 2001, Blair was

adjudged a juvenile delinquent and ordered to successfully

complete in-patient residential treatment at Baptist Boys

Academy in Missouri. - . .” (App. 19)

Petitioner has suffered a “whipsaw.” When the Dis-

trict Court dismissed the § 1983 claim, the District Court

said the parents sent Petitioner. For the false imprison-

ment claim, the District Court then relies on the Court

Order compelling Petitioner to attend Mountain Park.

Nobody contends that the parents gave informed

consent: At oral argument, Judge Bowman asked Respon-

dents’ counsel if his clients conceded the lack of informed

consent. Respondents counsel stood in embarrassed silence

until another judge quipped “but even if....” The entire

16

room full of law students* erupted in laughter. Everyone

knew that no tenable claim of informed consent was

possible even though Respondents had claimed, and the

panel accepted, that:

Blair’s parents consented to his enrollment

at Mountain Park and Palm Lane with full

knowledge of the schools’ programs and restric-

tions, and thus their consent was informed. See

Appellees’ Supp. App. at 122, Aff. of Ronald G.

Blair 77 8, 16 (confirming that Blair’s parents

“fully understood and agreed with and to the re-

ligious, moral, and educational principals [sic]” of

the schools and recognizing that enrollment was

an “alternative to juvenile detention”).

Petitioner’s parents sent him to Mountain Park

without being informed that Respondents’ methods for

juvenile training included deprivation of bathroom

privileges, sleep deprivation, deprivation of prescription

medications, etc. They stated unequivocally in depositions

that he would not have sent Jordan Blair to Mountain

Park if he had believed that Jordan would have heen

deprived of the right to go to the bathroom. (Joint App.

470-471, 485) Petitioner’s mother Jannett Blair said that

she would not have consented had she known about the

sleep deprivation. (Joint App. 479) So how can anyone

suggest, with a straight face, that the Blairs “fully agreed”

with such inhumane practices?

The Blair parents affirmed their agreement with

Mountain Park’s stated principles, not the actual practices

in place at Mountain Park. Furthermore, their affidavit is

highly suspect because part of their written agreement

was to indemnify Mountain Park for any damages, attor-

ney’s fees, or costs assessed in a court of law — even if their

son died, and regardless of how negligently or intention-

ally the Respondents acted to cause the injury.

* Oral argument was held at Washington University School of Law

in St. Louis, Missouri.

17

Petitioner’s parents contracted with Mountain Park

for the provision of educational services to their 16 year

old son. Nothing in that agreement grants or implies any

right to imprison Petitioner. In fact, the paperwork signed

by the parents and Appellees says that “We (I ) under-

stand that Mountain Park Baptist Boarding Academy is

no more chan the name implies and makes no claims to be

anything else.” (Joint App. 488) In Respondents’ Reply of

7-19-2002 (Joint App. 64) they claim: “ ... his parents

asked Mountain Park Boarding Academy to take him and

contracted with Mountain Park Boarding Academy for his

education.” (Emphasis added.) Such language does not

imply a delegation of any right to incarcerate Petitioner.

With respect to the incarceration at Palm Lane

Baptist Church, Inc., DBA Palm Lane Academy, there is no

evidence of any written agreement in which Petitioner’s

parents purported to delegate any rights whatever. Fur-

thermore, ali the payments made by the parents of Peti-

tioner were sent to Mountain Park. (Joint App. 467)

Furthermore, the parents’ purported reason for

sending Plaintiff to Mountain Park was completely falla-

cious. Petitioner had already completed the requirements

for a high school diploma before his enrollment in Moun-

tain Park. He was awarded the diploma in absentia, from

a previously attended “Accelerated Christian Education”

school, on 11-10-2001, long before his “unauthorized

departure” from Palm Lane Academy. (Joint App. 123)

Petitioner was sent to Florida, against his will, the same

day.

The Missouri statutes include both criminal and civil

statutes addressing unlawful detention. RSMo 431.067

provides that:

Any minor may execute legally binding promis-

sory notes and may legally contract to borrow

money to defray the necessary expenses of at-

tending any accredited university, college or

conservatory, and shall have full legal capacity

to act in his own behalf for the purpose, and

shall have all the rights, powers and privileges

18

and be subject to the obligations of persons of full

age with respect to the contracts and notes.

Defendants, by incarcerating Plaintiff, rendered this legal

right a nullity, even though he had his high school di-

ploma, as demonstrated by uncontradicted allegations in

his verified complaint.

RSMo. 1.210 provides “No person’s body shall be

imprisoned or restrained unless by authority of law.”

RSMo 565.130, False Imprisonment, says:

1. A person commits the crime of false impris-

onment if he knowingly restrains another unlaw-

fully and without consent so as to interfere

substantially with his liberty.

2. False imprisonment is a class A misde-

meanor unless the person unlawfully restrained

is removed from this state, in which case it is a

class D felony.

In Resolution Trust Corp. v. Home Sav. Of America,

946 F.2d 93 (8th Cir. 1991) the Court said:

In general, a contract entered in violation of fed-

eral statutory or regulatory law is unenforceable.

See Comdisco, Inc. v. United States, 756 F.2d

569, 576 (7th Cir. 1985) (Treasury Regulation Y);

Quinn v. Gulf & Western Corp., 644 F.2d at 92-

93° (federal procurement regulations). This is be-

cause “one who has... participated in an illegal

act cannot be permitted to assert in a court of

justice any right founded upon or growing out of

the illegal transaction.”

(Emphasis added)

Under certain circumstances, Missouri state law

allows a parent to validly give another the consent to

restrain a juvenile under the age of 17. However, this

consent is of no legal consequence when the person de-

tained is at least 17 years of age.

* Quinn v. Gulf & Western Corp., 644 F.2d 89, 93 (2d Cir. 1781)

19

RSMo 565.140 provides in pertinent part:

1. Aperson does not commit false imprisonment

under section 565.130 if the person restrained

is a child under the age of seventeen and

(1) A parent, guardian or other person re-

sponsible for the general supervision of the

child’s welfare has consented to the re-

straint;....

(Emphasis added)

The Missouri compulsory education statute sets forth

the age at which children may be lawfully compelled by a

parent, guardian, or other person to attend school:

RSMo 167.031. 1. Every parent, guardian or

other person in this state having charge, control

or custody of a child not enrolled in a public, pri-

vate, parochial, parish school or full-time equiva-

lent attendance in a combination of such schools

and between the ages of seven and sixteen

years is responsible for enrolling the child in a

program of academic instruction which complies

with subsection 2 of this section. .. .

(Emphasis added.)

Petitioner was not “between the ages of seven and

sixteen years” — he was beyond 16 years of age when he

was unlawfully and without his consent restrained so as to

interfere substantially with his liberty.

Petitioner could not be forcibly or lawfully compelled

to attend school in Florida by a parent, guardian, or other

person, either, because Petitioner had already attained the

age of 16 years when he was taken to Florida without his

consent:

2001 Florida Statutes: 232.01 School attendance. —

(1)(a)l. All children who have attained the age

of 6 years or who will have attained the age of 6

years by February 1 of any school year or who

are older than 6 years of age but who have

not attained the age of 16 years, except as

20

hereinafter provided, are required to attend

school regularly during the entire school

term.

(Emphasis added.)

Respondents had a copy of Petitioner’s birth certifi-

cate in their possession at the time he was enrolled in

Mountain Park in Missouri, and they knew that Petitioner

was just one week shy of reaching his seventeenth birth-

day when he was taken without his consent from Missouri

to Florida. They knew from Petitioner’s transcript that he

had already earned all credits necessary for his high

school diploma prior to ever being enrolled at Mountain

Park in Missouri. Petitioner’s high school diploma was

issued the same day he was withdrawn from Mountain

Park and taken from Missouri against his will. Clearly, the

Respondents had no valid legal defense for their unlawful

restraint of Petitioner, either in Missouri or Florida.

RSMo 431.067, “Contracts of minors to borrow money

for higher education ~ validity” provides as follows:

Any minor may execute legally binding promis-

sory notes and may legally contract to borrow

money to defray the necessary expenses of. at-

tending any accredited university, college or con-

servatory, and shall have full legal capacity to act

in his own behalf for the purpose, and shall

have all the rights, powers and privileges

and be subject to the obligations of persons of full

age with respect to the contracts and notes.

(Emphasis added.)

The panel granted judgment based on parental

consent. But RSMo 565.140 makes it clear that restraint

based upon parental authority cannot extend past the age

of 17. The Respondents restrained Jordan Blair long after

he reached the age of 17. Respondent Betty Wills stated

that:

A. Because we felt like that there was some

teenagers that when they turned 17 they still

needed help. And in Missouri at 17 if they

wanted to eave they could leave. And we

21

were wanting to help them more so we went

down to Florida and opened up Palm Lane.

(Emphasis added) (TR Vol. I, p. 121:14-18)

The Eighth Circuit panel opinion totally fails to

address this issue. This Honorable Court should make it

clear that it is illegal to forcibly transport a 16 year old to

another state, without written parental consent or consent

of the minor, on the theory (whether or not valid) that the

receiving state allows detention for a longer time period.

There is no rational theory of due process that allows a

court to simply refuse to address key issues, and thereby

deny a litigant the relief otherwise due. Morrissey uv.

Brewer, 408 U.S. 471, 481 (1972).

The power of attorney relied upon by Respondents

violated Missouri law in that 1) it was not limited to

delegating power to another “individual,” and 2) it had no

expiration date — it was not limited to one year duration as

required by Missouri law.

Missouri law provides:

RSMo 475.024. A parent of a minor, by a properly

executed power of attorney, may delegate to an-

other 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.

This statute cross references RSMo 453.110, which pro-

vides that the unlawful surrender of a minor to the cus-

tody of another constitutes a class D felony.

Sam Gerhardt claimed in deposition that he was sure

that Petitioner was enrolled in Palm Lane Academy.

(Joint App. 441) But he admitted that enrollment docu-

ments for Palm Lane Academy were never executed, even

though copies of the agreement were allegedly sent to Ron

and Jannett Blair. (Joint App. 441-443)

22

The panel failed to address or decide the contention

that the alleged oral “contract” was unenforceable under

Florida’s statute of frauds because it wasn’t intended to be

completed in one year. In Dwight v. Tobin, 947 F.2d 455

(11th Cir. 1991), the Court said:

As an initial matter, the district court was cer-

tainly correct in finding that the statute of frauds

applies to this contract. Under well-settled Flor-

ida law, the statute of frauds bars the enforce-

ment of a contract when the parties intended and

contemplated that performance of the agreement

would take longer than one year. Yates v. Ball,

132 Fla. 132, 181 So. 341, 344 (1937). The intent

of the parties may be inferred from the “sur-

rounding circumstances” or the “object to be ac-

complished.”

Sam Gerhardt admitted in deposition that no student

has ever graduated from Mountain Park Academy in less

than one year. (Joint App. 455) Respondents’ Enrollment

Orientation Agreement informed the Blair parents that

“(t]he average enrollment of two years should be antici-

pated.” (Joint App. 489, 7 2)

Sam Gerhardt says that Petitioner was enrolled in

Palm Lane because he was withdrawn from Mountain

Park on November 10, 2001. (Joint App. 441) Sam

Gorhardt later claims that the agreement was an oral one,

and that Petitioner was really enrolled in Palm Lane

during the initial phone call. (Joint App. 442) When

confronted with the fact that the enrollment agreement

with Mountain Park called for a term of one year, he said

the dates on documents bear no relationship to the reality

of the agreements with parents. (Joint App. 444)

So what did we have? An oral agreement to enroll

Plaintiff at Palm Lane Academy at the time the parties

were contracting for a one year stay at Mountain Park? Or

was it an oral agreement formulated less than three weeks

later when Petitioner was withdrawn from Mountain

Park?

23

Ron Blair admitted that he sent all six of his monthly

tuition payments to Mountain Park. (Joint App. 466-477)

Robert O’Briant swore in his affidavit filed 8-22-2002,

paragraph 10, that: “The finances of Park (sic) Lane

Baptist Church, Inc. are strictly in Florida, and there is no

financial relationship with Mountain Park Baptist Acad-

emy.” (Joint App. 493)

There was no valid delegation by the Blair parents of

any right or bundle of rights that would include the right

of Palm Lane Baptist Church, Inc., to detain the Peti-

tioner, preventing him from obtaining medicine or legal

services. Yet Betty Sue Wills admitted in deposition (Joint

App. 462-463) that Petitioner was not allowed to leave the

Palm Lane property:

Q He [Jordan Blair} didn’t have any way to go

get that [acne] medication himself; did he?

A No, sir. He couldn't leave the [Palm Lane

Church/Academy] property.

The Mature Minor Doctrine cannot be overlooked in

this case. That doctrine arose out of the constitutional

right to privacy cases concerning abortion. In City of Akron

v. Akron Center for Reproductive Health, Inc., 462 U.S.

416, 103 S.Ct. 2481, 76 L.E.2d 687 (1983), the Supreme

Court permitted “mature minors to consent to abortions .

without parental approval through the exercise of consti-

tutional rights.” See Note, Forcible Repatriation of Minors:

The Competing Rights of Parent and Child, 37, Stanford L.

Rev. 187, 207 (1984) for a discussion on City of Akron and

other cases as they relate to the rights of minors generally.

(“The ‘mature minor’ doctrine ... reflects a new way of

dealing with parent-child disputes involving the minor’s

fundamental rights as the minor approaches adulthood.”

Id. at 208.) See also Jn re E.G., a Minor, 133 Tll.2d 98, 549

N.E.2d 322, 326 (Sup. Ct., [ll., 1989), for application of the

Mature Minor Doctrine in the areas of freedom of expres-

sion, the constitutional right to be free from unreasonable

search and seizure, and procedural due process.

24

4) Isajuvenile deprived of due process when his

opponent is permitted to claim that Respon-

dents’ detention facilities teach cleanliness,

yet Petitioner cannot show that the Respon-

dents have forced juveniles in their care to

eat their own vomit, vwrinate and defecate on

themselves for lack of toileting privileges, etc?

The key facts pertinent to this claim are:

e Respondent Bo Gerhardt claimed that their

goal was to teach cleanliness. The Eighth

Circuit held that it was reversible error for

Petitioner to show the jury that the Respon-

dents forced juveniles in their care to eat

their own vomit, urinate and defecate on

themselves, etc.

e Respondents presented testimony that they

used the King James Bible. When Petitioner

showed that some of his King James Bibles

were confiscated, the Eighth Circuit in-

cluded that evidence as “misconduct” on the

part of Petitioner’s counsel.

The principal legal contention is that a defendant

cannot “open the door” to testimony and then cry foul.

United States v. Steele, 610 F.2d 504, 505 (8th Cir. 1979).

The panel cites 6 supposedly offensive questions, for

their claim that Petitioner’s attorney asked improper

questions. Not one of these questions was actually im-

proper.

Space considerations militate in favor of Petitioner

debunking the two most serious claims cited by the panel

as bad acts of Petitioner’s counsel. The remaining claims

by the panel are equally meritless.

First, concerning the question about forcing students

to eat foul food, Petitioner’s counsel was informed by Ray

Palmer that Bo Gerhardt had forced Ray Palmer to eat his

own vomit, whereas another staffer had attempted to force

25

him to eat vomit from out of a toilet. Bo Gerhardt had

testified on direct that “ ... No. 1 in my mind is that a

Christian ought to make sure their body is kept nice and

clean because it is the temple of God.” (TR Vol. II, Page

85)

Petitioner wished to get an explanation of how such

religious beliefs squared up with forcing or trying to force

people to eat their own vomit. Bo Gerhardt eagerly re-

stated his commitment to teaching cleanliness, but Mr.

Briggs vigorously objected under Rule 613(b) to the ques-

tion about whether students were forced to eat foul food.

Rule 613(b) requires confrontation before the use of

extrinsic evidence of a prior inconsistent statement. (TR

Vol. If, Page 120) Undersigned counsel did not know at

that time of any written documentation of this incident,

and had no intention of presenting any such document.

United States v. Beason, 220 F.3d 964, 968 (8th Cir. 2000),

holds that the evidence was proper:

The trial court has broad discretion in the ad-

mission of evidence and its decision will be over-

turned on appeal only if there has been an

abuse of discretion. See United States v.

Rogers, 939 F.2d 591, 594 (8th Cir. 1991). “It is

fundamental that where the defendant ‘opened

the door’ and ‘invited error’ there can be no re-

versible error.” United States v. Steele, 610 F.2d

504, 505 (8th Cir. 1979). We have allowed the use

of otherwise inadmissible evidence to clarify or

rebut an issue opened up by defense counsel on

cross-examination.

(Emphasis added) (citation omitted)

The United States Supreme Court declared in United

States v. Mandujano, 425 U.S. 564, 576 (1976), “[plerjured

testimony is an obvious and flagrant affront to the basic

concepts of judicial proceedings. Effective restraints

against this type of egregious offense are therefore im-

perative.” See also ABF Freight System, Inc. v. NLRB, 510

U.S. 317, 323 (1994) (“False testimony in a formal proceed-

ing is intolerable. We must neither reward nor condone

26

such a ‘flagrant affront’ to the truth-seeking function of

adversary proceedings.”).

As the United States Supreme Court noted in In re

Michael, 326 U.S. 224, 227 (1945), “[a]ll perjured relevant

testimony is at war with justice, since it may produce a

judgment not resting on truth.... [I]t cannot be denied

that it tends to defeat the sole ultimate objective of a

trial.”

Regarding the King James Bibles, Respondent’s

counsel raised the issue by asking if “their [Respondents’]

version of the Bible is the King James version of the

Bible?” (TR Vol. II, page 47) Petitioner’s counsel at-

tempted to clarify the Respondents’ understanding of the

term “King James version” with an eye toward bringing

out the fact that the Respondents had confiscated Peti-

tioner’s King James Bible that the Respondents deemed

heretical.’ The District Court ruled “Well, we've gone

enough into that.” Only the Respondents got to tell their

side of the story.

If the 8th Circuit decision stands, what keeps Bo

Gerhardt from making the same pious declarations of

teaching cleanliness, knowing that any proof that he tried

to force students to eat their own vomit, and at least one

other employee of Respondents tried to force a student to

eat their own vomit from a toilet?

This does not merely prevent Petitioner from proving

the truth, and obtaining redress for his torts against him.

It also places Petitioner in jeopardy of a large assessment

for costs, which would be financially devastating to Peti-

tioner. Petitioner currently maintains a full time employ-

ment at $7.75 per hour, and simultaneously attends the

University of Arkansas at Fort Smith.

” Respondents have their own tests for Bibles. If the Bible uses the

word “throughly” instead of “thoroughly” in a certain passage, and

passes several other tests, then it is acceptable. Otherwise it is consid-

ered contraband and confiscated from the students.

27

CONCLUSION

This Court must deal with many requests for certio-

rari. If the Court should so choose, this particular request

need not consume much of the Court’s time. Supreme

Court Rule 16(1) permits this Court to summarily dispose

of cases on the merits. This case does not necessarily

require scholarly analysis since the courts below have

simply refused to address the issues that mandate relief

for Petitioner.

If the Respondents think that any fact or legal conclu-

sion herein is erroneous, they have the right to file a brief

pursuant to Supreme Court Rule 15. Absent such a filing,

or in the event that the filing does not squarely meet and

deny the allegations of the petition, it is plain that the

Petitioner has shown himself entitled to the issuance of

the writ.

The Court has in hundreds of cases summarily va-

cated judgments and remanded the case to a court of

appeals, with respect to the U.S. v. Booker, 543 U.S. 220,

125 S.Ct. 738, 160 L.Ed.2d 621 (2005) issue alone. For

example, see West v. United States, 2005 U.S. LEXIS 3295

(U.S. 2005), where the Court said:

OPINION: On petition for writ of certiorari

to the United States Court of Appeals for the

Fifth Circuit. Motion of petitioner for leave to

proceed in forma pauperis and petition for a writ

of certiorari granted. Judgment vacated, and

case remanded to the United States Court of Ap-

peals for the Fifth Circuit for further considera-

tion in light of U.S. v. Booker, 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005).

Judicial economy is a wonderful principle. Unless the

Respondents make a substantial challenge to the facts and

law set forth herein, this Court is fully empowered to

simply issue the following order:

OPINION: On petition for writ of certiorari

to the United States Court of Appeals for the

Eighth Circuit. Petition for a writ of certiorari

28

granted. Judgment vacated, and case remanded

to the United States Court of Appeals for the

Eighth Circuit for further consideration in light

of {here cite cases].

Otherwise, the Respondents would likely assume this

Court’s action to amount to a stamp of approval on their

specific misconduct in this case, and similar acts of mis-

conduct. Although a summary denial of certiorari does not

carry the same weight as a full decision after argument, in

Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287,

306 (1998), this Court said that “[o]ur summary dismissals

are ... to be taken as rulings on the merits in the sense

that they rejected the specific challenges presented ...

and left undisturbed the judgment appealed from....”

This Court has supervisory power and has used that

power in the past. In Nguyen v. U.S. 539 U.S. 69, 73-74,

123 S.Ct. 2130 (U.S. 2003) the Court said:

... In accordance with this Court’s Rule 10(a),

we granted the writ, 537 U.S. 999, 123 S.Ct. 512,

513, 154 L.Ed.2d 394 (2002), to determine

whether the Court of Appeals had “so far de-

parted from the accepted and usual course of ju-

dicial proceedings as to call for an exercise of this

Court’s supervisory powers.”

Petitioner submits that the facts demonstrate a

proper case for the Court to exercise its supervisory power.

The honor and reputation of the judicial branch of gov-

ernment depend upon the maintenance of consistent and

certain discipline, when lower courts fail to address and

decide the legal questions necessarily and properly before

them for decision.

Abusive boarding schools have devastated thousands

of lives and killed many teens. One girl who had been in

an abusive boarding school, suffering from deprivation of

toileting privileges, with the accompanying self-denial of

water, was forced to go on a long and arduous forced

march through desolate country. Faint with thirst, she

begged for water. Her peers were forced to mock and

ridicule her, and deny her reasonable request, as she

29

slipped into a coma from which she never emerged. She

died. Sadly, such incidents are a regular occurrence, often

with little or no disclosure to the public.

A partial list of deaths is available at http://www.

ficausa.com/deaths.html. The most recent casualty was 12

year old Christening “Mikie” Garcia, suffocated to death

by her captors on December 5, 2005.

The following, from the book, AN AMERICAN GULAG,

written by Alexia Parks, gives an encapsulated description

of what transpired before Nicholaus Contreraz died:

For several weeks before he died on March 2,

1998, Nicholaus Contreraz (16), was suffering

from diarrhea and continuous vomiting. For days

before his death, he was then made to carry

around a trash can containing his vomit and the

clothes he had defecated in.

Hours before he died, he was required to

stretch out in a “hold” position with his feet on a

desk and his face over a bucket of his own vomit.

Moments before he died, he was put into a

wheelbarrow and required to make the sounds of

an “ambulance.” He was being wheeled to a vol-

leyball game and because he could not stand, the

staff “assisted” him in getting the ball over the

net.

At the moment of Nicholaus’ death, staff

threw a bucket of water on him.... They told

him “it’s all in your head.” When he didn’t re-

spond, they took a closer look. He was dead.

An autopsy showed 2 1/2 quarts of pus in his

partially collapsed left lung.

Some of the kids in boarding schools really are trou-

bled. Others, like the girl who died for lack of water with

other kids all around, had little or no history of trouble.

The girl was sent to the school because she was raped, not

because she was a discipline problem.

Of course, juvenile delinquency, even if true, is no

reason to subject a juvenile to the death penalty. This

30

Court would step in without hesitation to prevent any of

these children from being executed for their youthful

misdeeds. Surely this Court cannot allow the killing to

continue because the victims are taken at random and

slowly abused to death.

Those who have grown wealthy flouting the laws on

taxation, torts, contracts, fair labor standards, and what-

ever else gets in their way, have celebrated the Eighth

Circuit’s decision below, ratcheting up the abuse. They

boast of their invulnerability. This august tribunal, and

perhaps no one else, has the power to inform them other-

wise.

Respectfully submitted,

JORDAN BLAIR

c/o 7103 Race Track Loop

Fort Smith, AR 72916

Pro se

479-996-4109 Message Telephone

APPENDICES

App. 1

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 04-2434

Jordan Blair,

Plaintiff-Appellant,

v.

Bob Wills, also known as ae a i ke

W. B. Wills, also known as ‘ Appeais trom the

Bobby Ray Wills; : United States District

Betty Sue Wills; Sam Gerhardt; * Court for the Eastern

Deborah Gerhardt; Bo Gerhardt; * District of Missouri.

Julie Gerhardt; Drew Parrish;

Robert O’Brient; Robert Kennedy, °

doing business as Mountain Park °

Boarding Academy; Palm Lane

Baptist Church, Inc.,

Defendants-Appellees.

No. 04-2539

Jordan Blair,

Plaintiff-Appellee,

v.

Bob Wills, also known as

W. B. Wills, also known as

Bobby Ray Wills; Betty Sue Wills; °

Sam Gerhardt;

Deborah Gerhardt,

Defendants-Appellants,

Bo Gerhardt,

Defendant,

Julie Gerhardt; Drew Parrish;

Bill Cavitt; Robert O’Brient;

Aaron Smith; Robert Kennedy;

Mike Pardos, doing business as

Mountain Park Boarding

Academy; Palm Lane Baptist

Church, Inc.,

Defendants-Appellees.

No. 04-2540

Jordan Blair,

Plaintiff-Appellee,

Vv.

Bob Wills, also known as

W. B. Wills, also known as :

Bobby Ray Wills; Betty Sue Wills; °

Sam Gerhardt;

Deborah Gerhardt,

Defendants,

Bo Gerhardt,

Defendant-Appellant,

Julie Gerhardt; Drew Parrish;

Robert O’Brient; Robert Kennedy, -

doing business as Mountain Park :

Boarding Academy; Palm Lane

Baptist Church, Inc.,

Defendants.

App. 3

Submitted: March 15, 2005

Filed: August 25, 2005

Before ARNOLD, BOWMAN, and RILEY, Circuit Judges.

BOWMAN, Circuit Judge.

Jordan Blair sued the Appellees, alleging that they

violated various federal and state laws while Blair was a

student at boarding schools in Missouri and Florida. Prior

to trial, the District Court granted the Appellees’ motion to

dismiss Blair’s claim under 42 U.S.C. § 1983 (2000) and

the Appellees’ motion for summary judgment on Blair’s

state-law claim of false imprisonment. The District Court

also granted summary judgment on Blair’s state-law

battery claim with respect to all Appellees except for Bo

Gerhardt. During trial, the District Court granted the

Appellees’ motion for judgment as a matter of law on

Blair’s claim under the Fair Labor Standards Act (FLSA),

29 U.S.C. §§ 201-219 (2000). Blair’s battery claim against

Bo Gerhardt was submitted to the jury, which returned a

verdict against Gerhardt and awarded Blair $20,000 in

damages. The District Court denied Gerhardt’s motion for

a new trial. Blair appeals the District Court’s adverse

rulings as to his claims, and we affirm. Bo Gerhardt cross-

appeals the District Court’s denial of his motion for a new

trial. We reverse the District Court’s judgment with

respect to Gerhardt’s motion and remand for a new trial.

App. 4

I.

In October 2001, Blair, who was sixteen years old at

the time, was arrested in Crawford County, Arkansas, and

charged with terroristic threatening and criminal mis-

chief. Blair’s parents asked the Juvenile Division of the

Circuit Court of Crawford County, Arkansas (Juvenile

Court), to place Blair on probation and order him to

complete a residential term at a Baptist boarding academy

in lieu of sentencing him to a term of confinement at a

juvenile detention facility. At Blair’s juvenile adjudication

hearing, the Juvenile Court ordered that Blair be placed

on probation and that, as a term of his probation, Blair

complete “in-patient/residential treatment at Baptist Boys

Academy in Missouri (or like facility).” Joint. App. at 250

(Order of Juvenile Court dated October 24, 2001).

Blair’s parents had previously submitted an applica-

tion for Blair’s enrollment at Mountain Park Boarding

Academy in Missouri (Mountain Park) and had executed a

power of attorney delegating parental authority to school

administrators. School administrators recommended that

Blair be transferred to Mountain Park’s sister school,

Palm Lane Academy in Florida (Palm Lane), after a brief

stay at Mountain Park, and Blair’s parents agreed. Pursu-

ant to his parents’ wishes, Blair was transported to Moun-

tain Park immediately after the adjudication hearing and

remained at the school from October 24, 2001, until

November 9, 2001, at which time he was transferred to

Palm Lane. He resided at Palm Lane until he left without

permission on March 15, 2002.

Mountain Park and Palm Lane are Baptist boarding

schools offering students an “Accelerated Christian Educa-

tion” curriculum. In conjunction with this curriculum,

App. 5

students attending the schools are required to perform

various chores, including laundry, cleaning, lawn-mowing,

brush-clearing, painting, general maintenance, and other

tasks. School administrators testified that performing the

various chores is an integral part of the iearning environ-

ment at Mountain Park and Palm Lane and is intended to

instill in each student a sense of teamwork, responsibility,

accomplishment, and pride.

Blair alleges that, pursuant to the Appellees’ policies,

he was physically and psychologically abused while

residing at Mountain Park and Palm Lane. Among other

allegations, he maintains that the Appellees denied him

reasonable bathroom privileges; forced him to remain on

school premises; assaulted him; subjected him to system-

atic sleep deprivation; required him to attend religious

services; and forced him to work without pay in Appellees’

for-profit businesses. This alleged mistreatment forms the

basis of Blair’s various claims.

II.

Blair first argues that the District Court erred in

dismissing his § 1983 claim under Rule 12(b)(6) of the

Federal Rules of Civil Procedure for failure to state a

claim upon which relief could be granted. As a preliminary

matter, we note that although the District Court described

its ruling as a dismissal under Rule 12(b)(6), it appears

that the Appellees offered affidavits and other documents

outside the pleadings in support of their motion and that

the District Court considered tf ese submissions in making

its ruling. Because the court considered matters outside

the pleadings, the Rule 12(b)(6) motion to dismiss is

treated as a Rule 56 motion for summary judgment. See

App. 6

Fed. R. Civ. P. 12(b). In such a case, notice to the nonmov-

ing party — whether actual or constructive -- is typically

required. See Angel v. Williams, 12 F.3d 786, 788 (8th Cir.

1993) (noting that Rule 12(b) “does not require the court to

give affirmative notice to the parties of its intent to con-

sider matters outside the complaint”; constructive notice is

sufficient when plaintiff has adequate time to respond). In

the circumstances of this case, any lack of formal notice by

the District Court that it would treat the motion filed by

the Appellees as a motion for summary judgment rather

than a motion to dismiss was harmless. The Appellees

filed their motion to dismiss on July 19, 2002. Blair filed

his response on August 7, 2002. The District Court granted

Blair leave to amend his complaint on August 29, 2002 —

well after the Appellees submitted their facts. The court

did not rule on the Appellees’ motion until December 2,

2002, over three months after Blair filed his First

Amended Complaint. Blair had ample opportunity to

respond to the Appellees’ motion, and there has been no

showing that material facts were disputed or missing from

the record. See Madewell v. Downs, 68 F.3d 1030, 1048

(8th Cir. 1995) (stating lack of formal notice is harmless if

the nonmoving party had an adequate opportunity to

respond to the motion, and material facts were neither

disputed nor missing from the record); Davis v. Johnson

Controls, Inc., 21 F.3d 866, 867 (8th Cir.) (same), cert.

denied, 513 U.S. 964 (1994).

Having determined that the District Court’s Rule

12(b)(6) dismissal should be treated as a Rule 56 grant of

summary judgment, we must determine whether it was

properly granted. We review de novo the District Court’s

grant of summary judgment. Shanklin v. Fitzgerald, 397

F.3d 596, 602 (8th Cir. 2005). Summary judgment is proper

App. 7

only where there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of

law. Jd. (quoting Fed. R. Civ. P. 56(c)). We view the evi-

dence and the inferences that may reasonably be drawn

therefrom in the light most favorable to the nonmoving

party. Id.

To proceed on his § 1983 claim, Blair was required to

establish that the Appellees deprived him of his constitu-

tional rights while acting “under color of state law.” See

Adams ex rel. Harris v. Boy Scouts of Am.-Chickasaw

Council, 271 F.3d 769, 777-78 (8th Cir. 2001) (noting that

conduct of private party may be attributed to state where

state has “situated itself in a positic.n of interdependence

with” private party). Blair attempts to satisfy this re-

quirement by arguing that, because the Juvenile Court

ordered him to attend Mountain Park, state action may be

imputed to the school. The District Court found this

argument unavailing and so do we. At the request of

Blair’s parents, the Juvenile Court ordered that Blair

complete treatment at “Baptist Boys Academy in Missouri

(or like facility).” Joint App. at 250 (Order of Juvenile

Court dated October 24, 2001) (emphasis added). Vontrary

to Blair’s assertions, the Juvenile Court did not place Blair

at Mountain Park or Palm Lane Rather, the choice of

boarding school was left to Blair’s parents, who completed

an application for Blair’s admission at Mountain Park,

consented to Blair’s transfer to Palm Lane, and signed a

power of attorney delegating authority over Blair to school

administrators. Blair did not establish that Mountain

Park or Palm Lane received state-provided funds or

accepted referrals or placements directly from state courts.

Because Blair presented no evidence that the Appellees

were acting under color of state law, the District Court did

App. 8

not err in granting the Appellees’ motion for summary

judgment on Blair’s § 1983 claim.

ITI.

Blair next argues that the District Court erred in

granting the Appellees’ motion for summary judgment on

his state-law claim of false imprisonment. As noted above,

we review de novo the District Court’s grant of summary

judgment, viewing the evidence in the light most favorable

to the nonmoving party. We affirm if there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law. Shanklin, 397 F.3d at 602.

Missouri state law governs the substance of Blair’s

false imprisonment claim. Dairy Farmers of Am., Inc. v.

Travelers Ins. Co., 292 F.3d 567, 572 (8th Cir. 2002) (noting

that when jurisdiction over an issue is based on diversity,

court applies substantive law of the forum state). To

proceed on his false imprisonment claim, Blair was re-

quired to show that he was confined without his consent

and without legal justification. Mo. Rev. Stat. § 565.130

(2000); Rankin v. Venator Group Retail, Inc., 93 S.W.3d

814, 819 (Mo. Ct. App. 2002); Hyatt v. Trans World Air-

lines, Inc., 943 S.W.2d 292, 299 (Mo. Ct. App. 1997). In

determining whether a minor has consented to a confine-

ment, we may consider whether the minor’s parents have

consented on his behalf because parents exercise authority

over the custody, care, and management of their children,

Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th Cir. 1997);

Mo. Rev. Stat. § 475.025 (2000), and may delegate that

authority on behalf of their minor children, Mo. Rev. Stat.

§ 431.061 (2000) (allowing parents to give consent for

medical treatment on behalf of minor children); Mo. Rev.

App. 9

Stat. § 631.105 (2000) (authorizing parents to enroll or

commit children to treatment facilities).

According to Blair, the Appellees detained him at

Mountain Park and Palm Lane without his consent and

without legal justification. Blair contends that his parents’

consent to enroll him at Mountain Park and Palm Lane

was not informed and was therefore invalid. Consequently,

Blair concludes, he was falsely imprisoned by the Appel-

lees. We disagree.

Blair was sixteen years old and a minor when his

parents enrolled him at Mountain Park. Blair’s parents

completed an application for his enrollment at Mountain

Park; they understood that Blair would be transferred to

Palm Lane; and they signed a power of attorney conveying

parental authority to school administrators. See Joint.

App. at 321-22 (Jannett Blair Decl.); Jd. at 323-24 (Ron

Blair Decl.). Although Missouri courts have not addressed

specifically whether a private school may be liable for false

imprisonment when a custodial parent consents to the

child’s enrollment and attendance at the school, we con-

clude that, in the circumstances of this case, the Missouri

courts would agree that Blair cannot maintain an action

for false imprisonment. Parents have a recognized liberty

interest in the care, custody, and management of their

children, Swipies v. Kofka, 348 F.3d 701, 703 (8th Cir.

2003), and have the right to direct the upbringing and

education of their children, Doe “A” v. Special School Dist.

of St. Louis County, 637 F. Supp. 1138, 1146 (E.D. Mo.

1986); Reece v. Reece, 890 S.W.2d 706, 710 (Mo. Ct. App.

1995) (acknowledging that parent may arrange for another

to provide care and education for minor child). Blair’s

parents consented to his enrollment at Mountain Park and

Palm Lane with full knowledge of the schools’ programs

App. 10

and restrictions, and thus their consent was informed. See

Appellees’ Supp. App. at 122, Aff. of Ronald G. Blair 7{ 8,

16 (confirming that Blair’s parents “fully understood and

agreed with and to the religious, moral, and educational

principals” of the schools and recognizing that enrollment

was an “alternative to juvenile detention”). The District

Court did not err in finding that the Appellees were entitled

to summary judgment on Blair’s false-imprisonment claim.

IV.

Finally. Blair argues that the District Court erred in

granting the Appellees’ motion for judgment as a matter of

law on his FLSA claim. Blair alleges that while he was

enrolled at Mountain Park and Palm Lane, the Appellees

forced him to work without pay in violation of the FLSA.

We review a grant of judgment as a matter of law de novo,

drawing all reasonable inferences in favor of the nonmov-

ing party. Walsh v. Natl Computer Sys., Inc., 332 F.3d

1150, 1158 (8th Cir. 2003). Judgment as a matter of law is

proper when “there is no legally sufficient evidentiary

basis for a reasonable jury” to find in favor of the nonmov-

ing party. Fed. R. Civ. P. 50(a); see Walsh, 332 F.3d at 1158.

Under the FLSA, an employer must pay a minimum

wage to its employees who work in covered activities. See

29 U.S.C. § 206 (2000). The Supreme Court has defined

“work” to include “physical or mental exertion ... con-

trolled or required by the employer and pursued necessar-

ily and primarily for the benefit of the employer and his

business.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local

No. 123, 321 U.S. 590, 598 (1944) (footnote omitted). In

determining whether an entity functions as an individual’s

employer, courts generally look to the economic reality of

App. 11

the arrangement. See Goldberg v. Whitaker House Coop.,

Inc., 366 U.S. 28, 33 (1961) (explaining that “‘economic

reality rather than ‘technical concepts’ is ... the test of

employment” under the statute). In this case, Blair’s

activities at the schools were not “work,” and the Appellees

were not “employers,” as contemplated under the FLSA.

School administrators testified that chores were an inte-

gral part of the educational curriculum at Mountain Park

and Palm Lane, and those chores were primarily for the

students’, not the Appellees’, benefit. Administrators

further testified that the chores were intended to instill in

each student a sense of teamwork, responsibility, accom-

plishment, and pride. Although having students perform

chores helped defray certain costs that the Appellees

would have incurred had they hired employees to perform

those tasks, looking at the totality of the economic circum-

stances, there is no evidence on which a reasonable jury

could conclude that Blair’s activities constituted employ-

ment under the FLSA. The District Court did not err in

granting the Appellees’ motion for judgment as a matter of

law on Blair’s FLSA claim.

V.

Bo Gerhardt argues that the District Court abused its

discretion in refusing to grant his motion for a new trial.

Gerhardt contends that Blair’s attorney repeatedly intro-

duced irrelevant and prejudicial matters into the proceed-

ings and that this misconduct was so severe that he is

entitled to a new trial. “[I]mproper questioning by counsel

generally entitles the aggrieved party to a new trial if it

conveys improper information to the jury and prejudices the

opposing litigant.” Silbergleit v. First Interstate Bank of

Fargo, 37 F.3d 394, 398 (8th Cir. 1994) (citing Sanders-El v.

App. 12

Wencewicz, 987 F.2d 483, 484 (8th Cir. 1993)). When

counsel repeatedly attempts to use irrelevant and prejudi-

cial evidence, the possibility of improper influence is

increased. Jd. Counsel’s misconduct may be such that a

district court cannot overcome its prejudicial effect by

admonishing the jury or rebuking counsel; in such case a

court should grant a new trial. Jd. The District Court has

broad discretion in deciding whether questioning by

counsel is so prejudicial that a new trial is warranted, IJd.,

and we review this determination for abuse of discretion

only, Marvin Lumber & Cedar Co. v. PPG Indus., 401 F.3d

901, 917 (8th Cir. 2005).

Prior to trial, the Appellees filed a motion in limine

with the District Court seeking to exclude evidence they

argued was irrelevant to Blair’s FLSA and battery claims.

The District Court granted the motion insofar as it agreed

with the Appellees that the evidence was irrelevant to

Blair’s remaining claims. See Transcript Vol. I at 13-44

(excluding evidence of, inter alia, a conspiracy by Appel-

lees’ to deprive Blair of his constitutional rights, false

imprisonment, cruel and unusual punishment, deprivation

of medicine and educational materials, and denial of

bathroom privileges and sleep). Nevertheless, by our

count, the Appellees properly objected in open court to

questioning by Blair’s counsel on eighteen occasions

during the first day and on thirty-four occasions during

the second day of a two-and-a-half-day trial. Among other

objectionable questions, Blair’s counsel asked witnesses

whether the school prohibited students from having the

King James version of the Bible; whether students were

required to attend religious services; whether Blair was

denied access to an attorney; whether the school had a

racial nondiscrimination policy; whether students were

App. 13

confined; and whether students were forced to eat rotten

or spoiled food. The District Court sustained an objection

after each of these questions, but did not strike the offend-

ing question or immediately instruct the jury to disregard

the irrelevant information. Although the District Court

repeatedly reminded Blair’s counsel to focus on the claims

remaining in the case — the FLSA and battery claims —

and to refrain from injecting irrelevant and prejudicial

evidence into the proceeding, these admonitions were

unsuccessful. Unfortunately, the ongoing introduction of

irrelevant information, the repeated objections by Appel-

lees, and the frequent warnings and admonitions by the

District Court likely gave jurors the impression that

something more happened than they were being told.

When the case is a close one, the possibility that improper

conduct could have influenced the jury’ verdict is in-

creased. Silbergleit, 37 F.3d 398. The fact that the jury

awarded Blair $20,000 on relatively weak evidence of

battery supports our conclusion that Gerhardt was preju-

diced by the misconduct of Blair’s counsel.

The line of questions posed by Blair’s counsel over the

course of the two-and-a-half-day trial emphasized irrele-

vant information having no bearing on the issues remain-

ing in the case and demonstrated a persistent effort by

Blair’s counsel to get this information before the jury,

despite repeated admonitions by the District Court.

Although the District Court made a valiant attempt to

rein in Blair’s attorney, the improper and prejudicial

questioning continued. We believe that the combined effect

of these questions was to present to the jury an abundance

of irrelevant evidence that had no bearing on the merits of

the remaining claims and served only to prejudice the jury

against Gerhardt. Consequently, we conclude that the

App. 14

District Court abused its discretion by denying Gerhardt’s

motion for a new trial on Blair’s battery claim.

VI.

In conclusion, we affirm the District Court’s dismissal

of Blair’s § 1983, false imprisonment, and FLSA claims.

We reverse the District Court’s denial of Gerhardt’s motion

for a new trial and remand the case for further proceed-

ings on Blair’s battery claim.

App. 15

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

JORDAN BLAIR,

Plaintiff,

V.

BOB WILLS, et al.,

Defendants.

No. 1:02-CV-88 CAS

i

MEMORANDUM AND ORDER

This matter is before the Court on defendants’ motions

for summary judgment. Plaintiff filed a memorandum in

opposition to defendants’ motions. For the following

reasons, the Court will deny defendants’ motions for

summary judgment as to the Fair Labor Standards Act,

grant defendants’ motions for summary judgment as to the

false imprisonment claim, and grant defendants’ motions

for summary judgment as to the battery claims against all

defendants except Bo Gerhardt.

Background

Plaintiff Jordan Blair filed this case against defen-

dants alleging violation of his constitutional rights under

42 U.S.C. §§ 1983, 1985, and violations of the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq. Blair

also alleged state law tort claims of battery and false

imprisonment.’ The Court dismissed the constitutional

* Both parties rely on Missouri law in support of their arguments

on summary judgment for the tort claims.

App. 16

claims under 42 U.S.C. §§ 1983 and 1985. Order of De-

cember 2, 2002. The defendants moved for summary

judgment on the remaining claims of violation of FLSA,

false imprisonment, and battery. There are ten defendants

in this case: Bob Wills, Betty Sue Wills, Sam Gerhardt,

Deborah Gerhardt, Bo Gerhardt, Julie Gerhardt, Drew

Parrish, Robert O’Briant, Robert Kennedy, and Palm Lane

Baptist Church, Inc. Bob Wills, Betty Sue Wills, Sam

Gerhardt, Deborah Gerhardt, Bo Gerhardt, Drew Parrish,

and Robert O’Briant are employees of Mountain Park

Boarding Academy (“Mountain Park”), which is located in

Missouri. Defendants Robert Kennedy is an employee of

Palm Lane Boarding Academy (“Palm Lane”); which is

located in Florida.

Blair alleges that he was compelled to work without

pay for thirty to forty hours a week on defendants’ busi-

ness enterprises at Mountain Park and Palm Lane. Blair

further alleges that he was falsely imprisoned by defen-

dants because his parents’ consent to enroll him at the two

schools was not an informed consent. Finally, Blair alleges

that he was a victim of battery at both schools.

The defendants assert that Blair’s work at the schools

is not governed by FLSA. The defendants also state that

Blair’s parents consented to his enrollment, therefore,

they cannot be liable for false imprisonment. Finally,

defendants state that Blair alleged one instance of battery

against Bo Gerhardt only; the battery claims against the

other defendants should be dismissed and the battery

claim remanded to state court.

App. 17

Standard

The standards applicable to summary judgment

motions are wel] settled. Pursuant to Federal Rule of Civil

Procedure 56(c), a court may grant a motion for summary

judgment if all of the information before the court shows

“there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.” See

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The

initial burden is placed on the moving party. City of Mt.

Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d

268, 273 (8th Cir. 1988) (the moving party has the burden

of cleaziy establishing the non-existence of any genuine

issue of fact that is material to a judgment in its favor).

Once this burden is discharged, if the record does in fact

bear out that no genuine dispute exists, the burden then

shifts to the non-moving party who must set forth affirma-

tive evidence and specific facts showing there is a genuine

dispute on that issue. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249 (1986). In determining whether the moving

party has met its burden, all evidence and inferences are

to be viewed in the light most favorable to the non-moving

party. Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th

Cir. 1990). Where the moving party fails to satisfy its

burden to show initially the absence of a genuine issue

concerning any material fact, summary judgment must be

denied even if no opposing evidentiary matter is pre-

sented. Foster v. Johns-Manville Sales Corp., 787 F.2d 390,

393 (8th Cir. 1986).

FLSA

Blair’s first claim is for wages under the FLSA. Under

the FLSA, an employer must pay a minimum wage to its

employees who work in activities covered by the Act. 29

App. 18

U.S.C. § 206 (2004). Courts generally look to the economic

reality of the situation to determine whether a school and

its students are covered under the Act. Bobilin v. Board of

Educ., 403 F. Supp. 1095, 1108 (D. Haw. 1975). At least

one court has found that the FLSA may be applicable to

juveniles adjudged delinquent and placed under state

supervision. King v. Carey, 405 F. Supp. 41, 44 (W.D.NLY.

1975). The parties do not dispute Blair performed “chores”

at both schools including laundry, hauling firewood,

washing cars, performing automobile and bus mainte-

nance, campus maintenance, repairing fences, digging and

enlarging ponds, rounding up cattle of third parties,

painting, replacing water pipes, and taking out trash. Pl.’s

Dep. at 33-35 and errata sheet at 3-4. In his verified first

amended complaint, Blair also states that he was forced to

work thirty to forty hours per week on defendants’ busi-

ness operations and he was not paid for any of his labor.

Compl. {7 191, 195. In response, the defendants do not

state how many hours per week Blair performed his

“chores.” Sam Gerhardt, the pastor of Mountain Park,

states that the curriculum of the schools is offered by

Accelerated Christian Education and the chores are

important for the students to learn teamwork and respon-

sibility as well as develop pride and accomplishment.

Defs.’ Ex. L. [J 4-6. Gerhardt states that young men at

both schools are responsible to do their own laundry, clean

their dormitory, and mow and “weed-eat” lawns. Defs.’ Ex.

L. { 5. He characterizes the time devoted to “other chores

such as automobile cleaning and maintenance, cleaning

brush, and painting” as occasional. Jd. Palm Lane, without

citing any evidentiary support, alleges that Blair per-

formed various chores after prayers and education; and

vaguely characterizes the frequency as “sometimes.” Def.

Palm Lane’s Mot. Summ. J. at 5. Actions performed

App. 19

“occasionally” and “sometimes” can be substantially

different from actions performed thirty to forty hours per

week over a five-month period.

The Court finds that there are genuine issues of

material fact which preclude the entry of summary judg- °

ment on Blair’s FLSA claim, including but not limited to

whether Blair’s chores at the schools were an integral part

of the educational curriculum or part of defendants’

business enterprises; the amount of time plaintiff spent

completing the chores in relation to the time spent on his

education; and whether the totality of the circumstances

show that plaintiff’s work should be compensated under

FLSA. As a result, defendants’ motions for summary

judgment as to plaintiff’s FLSA claim will be denied.

False Imprisonment Claim

Next, Plaintiff asserts a state law claim of false

imprisonment. False imprisonment occurs when the

plaintiff is confined by the wrongdoer without legal justifi-

cation. Hyatt v. Trans World Airlines, Inc., 943 S.W.2d 292,

299 (Mo. Ct. App. 1997). The following facts are not in

dispute. Blair was born on November 17, 1984. Defs.’ Ex. E

at 7. In October 2001, Blair was 16 years old. On October

24, 2001, Blair was adjudged a juvenile delinquent and

ordered to successfully complete in-patient residential

treatment at Baptist Boys Academy in Missouri. Defs.’ Ex.

H. After Blair was adjudged a juvenile delinquent, Blair’s

parents, Ron and Jannett Blair temporarily delegated

their parental authority to Bob Wills. Defs.’ Ex. K. Blair

was enrolled at Mountain Park from October 24, 2001 to

November 9, 2001. Pl.’s Dep. at 27. Then, from November

10, 2001 until March 15, 2002, Blair was enrolled at Palm

App. 20

Lane. Pl.’s Dep. at 31. In their respective declarations,

Blair’s parents state they consented to Blair attending

Mountain Park and Palm Lane. Ron Blair Decl. 7 12,

Jannett Blair Decl. { 12. Blair’s parents state that they

understood Blair would be sent to Palm Lane after his

enrollment at Mountain Park. Ron Blair Decl. 4 13,

Jannett Blair Decl. 7 9. Blair contends that his parents’

initial consent was not an informed consent because at

their depositions they stated that if the claims alleged in

Blair’s complaint are true, they would not have enrolled

him at Mountain Park and Palm Lane. Ron Blair Dep. at

30-31, Jannett Blair Dep. at 2, 24. Blair’s argument that

his parents’ consent was uninformed fails because his

parents admit that they knew he would attend both

schools and consented to his enrollment at both. There

cannot be an issue of genuine fact created based upon the

Blairs’ answer to a hypothetical question. The record does

not show that Blair’s parents withdrew their consent or

claim that their consent was based on fraud or misrepre-

sentatior. by the defendants. Blair does not provide any

evidence to support his allegations that his parents’

consent was invalid during his stay at Mountain Park and

Palm Lane.

“Parents have a recognized liberty interest in the care,

custody, and management of their children.” Whisman uv.

Rinehart, 119 F.3d 1303, 1309 (8th Cir. 1997). A child’s

parents are his natural guardians and have the custody

and care of the child’s person and education. MO. REV.

STAT. § 475.025 (2004). Parents can also give consent on

behalf of their minor children. MO. REV. STAT. § 431.061

(2004) (statute authorizing parents to consent to medical

treatment for minor child). Missouri courts have not

addressed whether a private school or any institution may

App. 21

be liable for false imprisonment when a custodial parent

consents to the child’s enrollment and confinement at the

school. Parents have the right, however, to direct the

upbringing and education of their children. Doe “A” v.

Special School Dist. of St. Louis County, 637 F. Supp. 1138,

1146 (E.D. Mo. 1986). Based on the parents’ fundamental

right to educate their child, Blair’s parents’ consent, and

no state guidance to the contrary, Blair cannot maintain

an action against defendants for false imprisonment. See

R.J.D. v. The Vaughan Clinic, 572 So.2d 1225, 1228-9 (Ala.

1990) (affirming dismissal of false imprisonment claim

against psychiatric hospital where custodial parent had

admitted child). Accordingly, the Court finds that defen-

dants are entitled to summary judgment on Blair’s claim

fo: false imprisonment.

Battery

Blair’s final claim is a state law claim for battery.

Battery is an intended, offensive, bodily contact with

another. State v. Dowd, 923 S.W.2d 444, 449 (Mo. Ct. App.

1996). Blair alleges in his verified first amended complaint

that “[djefendants and all of them have conspired together

with the purpose and effect of causing multiple batteries

upon the plaintiff....” Am. Compl. { 208. Defendants

request summary judgment on Blair’s battery claims

against all defendants except Bo Gerhardt. Defendants

cite Blair’s deposition in support of their motion for sum-

mary judgment. In his deposition, Blair states Bo

Gerhardt slammed him against a bathroom counter and

wall at Mountain Park. Pl.’s Dep. at 59, 62-63. Defendants

assert that the Court should dismiss the battery claims

against all defendants except Bo Gerhardt, because

App. 22

plaintiff does not allege batteries by any of the other

defendants. Pl.’s Dep. at 62-63.

Blair contends that his claim against Bo Gerhardt was

the first in a series of constant batteries against his

person. Pl.’s Mem. in Opp’n at 2. Blair also asserts that his

verified first amended complaint is sufficient for his

allegations against the other defendants. Blair’s verified

complaint is the equivalent of an affidavit for purposes of

summary judgment. Roberson v. Hayti Police Dep't, 241

F.3d 992, 994 (8th Cir. 2001). Although a party may not

rest on his pleadings to create a fact issue sufficient to

survive summary judgment, the facts alleged in a verified

complaint need not be repeated in a responsive affidavit in

order to survive summary judgment. Roberson at 995

(citing Williams v. Adams, 935 F.2d 960, 961 (8th Cir.

1991)). A conclusory affidavit which is devoid of specific

factual allegations cannot preclude summary judgment.

Allen v. Entergy Corp., 181 F.3d 902, 905 (8th Cir. 1999)

(citing Flannery v. Trans World Airlines, Inc., 160 F.3d

425, 428 (8th Cir. 1998)), cert. denied, 120 S.Ct. 618

(1999). Blair’s verified first amended complaint does not

make specific allegations against any defendant. In Blair’s

deposition, he makes one specific allegation of battery

against Bo Gerhardt. Pl.’s Dep. at 59. Blair has not sub-

mitted affirmative evidence or specific facts to support

battery claims against the other defendants. Summary

judgment is appropriate where there is no independent

evidence, other than the nonmoving party’s unsubstanti-

ated allegations. Pony Computer, Inc. v. Equus Computer

Sys. of Missouri, Inc., 162 F.3d 991, 997 (8th Cir. 1998)

(citing Davenport v. Riverview Gardens School District, 30

F.3d 940, 944 (8th Cir. 1994)). Therefore, the Court will

grant defendants’ motions for summéiy judgment on

App. 23

Blair’s state law claims of battery against Bob Wills, Betty

Sue Wills, Sam Gerhardt, Deborah Gerhardt, Julie

Gerhardt, Drew Parrish, Robert O’Briant, Robert Ken-

nedy, and Palm Lane Baptist Church, Inc.’

Defendants request that Blair’s battery claim against

Bo Gerhardt be remanded to state court. Because the

Court has denied defendants’ motions for summary judg-

ment as to Blair’s FLSA claims, the Court will retain

supplemental jurisdiction of the battery claim against Bo

Gerhardt.

Conclusion

For the foregoing reasons, the Court will deny defen-

dants’ motions for summary judgment on Blair’s FLSA

claim. The Court will grant defendants’ motions for sum-

mary judgment on Blair’s state law claims of false impris-

onment against all defendants and on plaintiff’s battery

* To the extent that Blair alleges a conspiracy regarding his claims

of false imprisonment and battery, Blair’s claims fail as a matter of law.

A civil conspiracy is an agreement or understanding between persons to

do an unlawful act or to use unlawful means to do a lawful act. Oak

Bluff Partners, Inc. v. Meyer, 3 S.W.3d 777, 780-81. (Mo. 1999) (en

banc). “In Missouri, if tortious acts alleged as elements of a civil

conspiracy fail to state a cause of action, then the conspiracy claim fails

as well.” Rice v. Hodapp, 919 S.W.2d 240, 245 (Mo. 1996) (en banc). A

claim of conspiracy must establish: (1) two or more persons; (2) with an

unlawful objective; (3) after a meeting of the minds; (4) committed at

least one act in furtherance of the conspiracy; and (5) the plaintiff was

thereby damaged. Jd. “Facts that, if true, constitute an unlawful act

must be alleged as an element of the tort for a petition to state a civil

conspiracy. Merely alleging the commission of wrongful acts is conclu-

sory and insufficient to state a claim for civil conspiracy.” Mackey v.

Mackey, 914 S.W.2d 48, 50 (Mo. Ct. App. 1996). Blair’s complaint

asserts conclusions that were not supported by facts, therefore, any

conspiracy claims fail as a matter of law.

App. 24

claims against Bob Wills, Betty Sue Wills, Sam Gerhardt,

Deborah Gerhardt, Julie Gerhardt, Drew Parrish, Robert

O’Briant, Robert Kennedy, and Palm Lane Baptist Church,

Inc.

Accordingly,

IT IS HEREBY ORDERED that defendants’ motions

for summary judgment are GRANTED IN PART, and

DENIED IN PART. [Docs 87 and 90]. Defendants’ mo-

tions for summary judgment as to Count V of plaintiff’s

first amended complaint are DENIED. Defendants’

motions for summary judgment as to plaintiff’s claim for

false imprisonment are GRANTED. Defendants’ motions

for summary judgment as to plaintiffs’ claims for battery

against Bob Wills, Betty Sue Wills, Sam Gerhardt, Deb-

orah Gerhardt, Julie Gerhardt, Drew Parrish, Robert

O’Briant, Robert Kennedy, and Palm Lane Baptist Church,

Inc., are GRANTED.

IT IS FURTHER ORDERED that the Court will

retain jurisdiction over plaintiff’s state law battery claim

against Bo Gerhardt.

An appropriate partial judgment will accompany this

memorandum and order.

/s/ Charles A. Shaw

CHARLES A. SHAW

UNITED STATES

DISTRICT JUDGE

Dated this 2nd day of March, 2004.

App. 25

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

JORDAN BLAIR,

Plaintiff,

v.

BOB WILLS, BETTY SUE WILLS,

SAM GERHARDT, DEBORAH

GERHARDT, BO GERHARDT,

JULIE GERHARDT, DREW

PARRISH, ROBERT O’BRIANT,

ROBERT KENNEDY, and PALM

LANE BAPTIST CHURCH, INC.,

Defendants.

No. 1:02-CV-88 CAS

i i i i a ee a a a a

PARTIAL JUDGMENT AND

PARTIAL ORDER OF DISMISSAL

In accordance with the Memorandum and Order of

this date and incorporated herein,

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that defendants’ motions for summary judg-

ment as to plaintiff’s claims for false imprisonment are

GRANTED.

IT IS FURTHER ORDERED, ADJUDGED, AND

DECREED that defendants’ motions for summary judg-

ment as to plaintiff’s claims for battery against Bob Wills,

Betty Sue Wills, Sam Gerhardt, Deborah Gerhardt, Julie

Gerhardt, Drew Parrish, Robert O’Briant, Robert Ken-

nedy, and Palm Lane Baptist Church, Inc., are

GRANTED.

App. 26

IT IS FURTHER ORDERED, ADJUDGED, AND

DECREED that judgment is entered in favor of defen-

dants and against plaintiff on Count VI of plaintiff’s first

amended complaint as to plaintiff’s claims for false

imprisonment.

IT IS FURTHER ORDERED, ADJUDGED, AND

DECREED that judgment is entered in favor of defen-

dants Bob Wills, Betty Sue Wills, Sam Gerhardt, Deborah

Gerhardt, Julie Gerhardt, Drew Parrish, Robert O’Briant,

Robert Kennedy, and Palm Lane Baptist Church, Inc. and

against plaintiff on Count VI of plaintiff’s first amended

complaint as to plaintiff’s claims for battery.

IT IS FURTHER ORDERED that Count VI of

plaintiff’s first amended complaint against defendants

Bob Wills, Betty Sue Wills, Sam Gerhardt, Deborah

Gerhardt, Julie Gerhardt, Drew Parrish, Robert O’Briant,

Robert Kennedy, and Palm Lane Baptist Church, Inc., is

DISMISSED with prejudice.

/s/ Charl w

CHARLES A. SHAW

UNITED STATES DISTRICT JUDGE

Dated this 2nd day of March, 2004.

App. 27

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

JORDAN BLAIR,

Plaintiff,

Vv.

BOB WILLS dba MOUNTAIN

PARK BOARDING ACADEMY,

BETTY SUE WILLS dba

MOUNTAIN PARK BOARDING

ACADEMY, SAM GERHARDT dba

MOUNTAIN PARK BOARDING

ACADEMY, DEBORAH

GERHARDT dba MOUNTAIN

PARK BOARDING ACADEMY,

BO GERHARDT dba MOUNTAIN

PARK BOARDING ACADEMY,

JULIE GERHARDT dba

MOUNTAIN PARK BOARDING

ACADEMY, DREW PARRISH dba

MOUNTAIN PARK BOARDING

ACADEMY, ROBERT O’BRIENT

dba MOUNTAIN PARK BOARDING

ACADEMY, ROBERT KENNEDY ?

dba MOUNTAIN PARK BOARDING ?

ACADEMY, PALM LANE BAPTIST ?

CHURCH, INC.,

Defendants.

No. 1:02-CV-88 CAS

ee ee ee ee ee

ee Nee ee”

JUDGMENT

This action came for trial before an advisory jury, the

undersigned United States District Judge presiding.

Following the presentation of plaintiff’s evidence, the

App. 28

defendants moved for judgment as a matter of law on the

Fair Labor Standards Act (“FLSA”) claim. The Court

denied that motion and defendants renewed their motion

at the close of all the evidence, as to the FLSA claim. The

Court granted the defendants’ motion for judgment as a

matter of law at the close of all the evidence.

Plaintiff Jordan Blair claimed that he was forced to

work without pay for defendants in violation of the FLSA.

In his verified amended complaint, Blair alleged that he

was forced to work without pay for approximately forty

hours per week at defendants’ business enterprises. At the

time of the alleged events, Blair was enrolled as a student

at Mountain Park Boarding Academy and Palm Lane

Boarding Academy. Under the FLSA, an employer must

pay a minimum wage to its employees who work in activi-

ties covered by the Act. 29 U.S.C. § 206 (2004). Courts

generally look to the economic reality of the situation to

determine whether a school and its students are covered

under the Act. Bobilin v. Board of Educ., 403 F. Supp.

1095, 1108 (D. Haw. 1975).

At trial, judgment was entered for defendants because

based on all the evidence in the record, there was no

legally sufficient evidentiary basis to find for the plaintiff

on the FLSA claim. See Phillips v. Collings, 256 F.3d 843,

847 (8th Cir. 2001) (quoting Fed. R. Civ. P. 50(a)). The

parties do not dispute Blair lived on the school grounds

and performed “chores” at both schools including laundry,

hauling firewood, washing cars, performing automobile

and campus maintenance, repairing fences, painting, and

taking out trash. The evidence at trial demonstrated that

Blair’s chores were an integral part of the educational

curriculum of Mountain Park and Palm Lane and were

primarily for the benefit of the plaintiff. The chores

App. 29

performed by Blair have an economic value to the school

because they save the school the cost of hiring others to

perform the chores. Looking at the totality of the entire

economic situation, however, it cannot be said as a matter

of law that these economically valuable activities could

reasonably be considered employment under the FLSA,

which would require the schools to pay minimum wages to

its students. Bobilin, 403 F. Supp. at 1108. Viewing all the

evidence in the light most favorable to Blair and drawing

all reasonable inferences in his favor, the evidence clearly

shows Blair was not an employee of defendants and is

susceptible of no reasonable inference sustaining that

position. Kingserlow v. CMI Corp., 217 F.3d 1021, 1025

(8th Cir. 2000) (citing Reeves v. Sanderson Plumbing

Prods., Inc., 120 S. Ct. 2097, 2110 (2000)).

Accordingly,

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that judgment as a matter of law pursuant to

Rule 50(a) be entered against plaintiff Jordan Blair and in

favor of defendants Bob Wills, Betty Sue Wills, Sam

Gerhardt, Deborah Gerhardt, Bo Gerhardt, Julie

Gerhardt, Drew Parrish, Robert O’Brient, Robert Kennedy,

and Palm Lane Baptist Church, Inc. on plaintiff’s claim

under the Fair Labor Standards Act, 29 U.S.C. § 206 and

that plaintiff’s claims be dismissed on the merits.

/s/ Charles A. Shaw

CHARLES A. SHAW

UNITED STATES DISTRICT JUDGE

Dated this 14th day of April, 2004.

App. 30

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

JORDAN BLAIR, )

ig )

Plaintiff, ) No. 1:02-CV-88 CAS

v. )

BOB WILLS, et al.,

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on defendant Bo

Gerhardt’s motion for a new trial and all defendants’

motions to amend the judgment to conform to 28 U.S.C.

§ 1332 and Federal Rule of Civil Procedure 54. For the

following reasons, the motions will be denied.

Procedural Background

Plaintiff Jordan Blair filed this case against defen-

dants alleging violation of his constitutional rights under

42 U.S.C. §§ 1983, 1985, and violations of the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq. Blair

also alleged state law tort ciaims of battery and false

imprisonment. The Court dismissed the constitutional

claims under 42 U.S.C. §§ 1983 and 1985. Order of De-

cember 2, 2002. The Court dismissed plaintiff’s state law

claims of false imprisonment and plaintiff's battery claims

against all defendants except defendant Bo Gerhardt on

defendants’ summary judgment motions. Order of March

2, 2004. On April 12, 2004, a jury trial was held on plain-

tiff’s FLSA claim and remaining battery claim. At the

close of the evidence, the Court granted defendants’

App. 31

motion for judgment as a matter of law as to plaintiff’s

FLSA claim. Plaintiff’s battery claim was submitted to the

jury. The jury returned a verdict in plaintiff’s favor in the

amount of $20,000.00.

Bo Gerhardt asserts that the jury's verdict is against

the weight of the evidence and plaintiff’s counsel’s im-

proper conduct and remarks prejudiced him during trial.

All of the defendants ask the Court to amend the clerk’s

judgment to conform to 28 U.S.C. § 1332 and Federal Rule

of Civil Procedure 54 or retax costs. Defendants contend

that the defendants substantially prevailed on the claims

against them and it would be unfair to tax Bo Gerhardt

with all of the costs.

Standard

It is almost entirely within the discretion of the trial

court whether to grant a new trial. See Federal Rule of

Civil Procedure 59(a); Citizens Bank of Batesville, Arkan-

sas v. Ford Motor Co., 16 F.3d 965, 967 (8th Cir. 1994). “A

new trial is appropriate when the first trial, through a

verdict against the weight of the evidence, an excessive

damage award, or legal errors at trial, resulted in a

miscarriage of justice.” Gray v. Bicknell, 86 F.3d 1472,

1480 (8th Cir. 1996). In reviewing a motion for a new trial

on the ground that the jury’s verdict is against the weight

of the evidence, the Court is free to weigh the evidence for

itself and grant a new trial even where substantial evi-

dence exists to support the verdict. Dominium Mgmt.

Sucs., Inc. v. Nationwide Housing Group, 195 F.3d 358,

366 (8th Cir. 1999); see White v. Pence, 961 F.2d 776, 780

(8th Cir. 1992). “Ultimately, the district court must deter-

mine if there will be a miscarriage of justice if the jury’s

App. 32

verdict is allowed to stand.” Jd. (citing White, 961 F.2d at

780). A miscarriage of justice occurs wher there is insuffi-

cient evidence to support the verdict. Douglas County

Bank & Trust Co. v. United Financial Inc., 207 F.3d 473,

478 (8th Cir. 2000).

Discussion

At trial, Blair testified that Bo Gerhardt shoved him

into a wall. Bo Gerhardt contends that the jury’s verdict

for Blair on this claim is against the weight of the evidence

presented at trial. First, Bo Gerhardt states that the only

evidence to support the verdict is the testimony of Blair.

Second, he asserts that Blair testified that he did not

report the battery and suffered no physical harm. Also,

Blair testified that Drew Parrish and Matt Elmore wit-

nessed the battery. Third, Bo Gerhardt testified that he

never shoved Blair into a wall and Drew Parrish testified

he did not witness Bo Gerhardt strike Blair. Additionally,

he asserts that the defeuse put on evidence that Mountain

Park policy prohibited staff members from touching or

disciplining students. Bo Gerhardt contends that the

weight of the evidence favors him and the jury’s verdict

should be overturned. Blair asserts that a reasonable jury

could credit Blair’s testimony over the testimony of the

defense witnesses.

“In determining whether a verdict is against the

weight of the evidence, the trial court can rely on its own

reading of the evidence — it can ‘weigh the evidence,

disbelieve witnesses, and grant a new trial even when

there is substantial evidence to sustain the verdict’.”

White, 961 F.2d at 780 (citations omitted). “The district

court, however, may not reweigh the evidence and set

App. 33

aside the jury verdict merely because the jury could have

drawn different inferences or conclusions or because [the

judge feels] other results are more reasonable.” Jd. (cita-

tions omitted). If the subject matter of the litigation is

simple, there is no complicated evidence, or where the

legal issues presented would not confuse the jury, the

court should be reluctant to grant a new trial. Fireman’s

Fund Ins. Co. v. Aalco Wrecking Co., 466 F.2d 179, 187 (8th

Cir. 1972), cert. denied, 410 U.S. 930 (1973).

Based on the evidence presented at trial, the Court

finds that the jury’s verdict was not against the weight of

the evidence. The battery claim involved the conflict of

simple testimony and turned on the credibility of the

witnesses. The Court observed the testimony and de-

meanor of the witnesses during trial. A reasonable jury

could disbelieve the testimony of Bo Gerhardt and Drew

Parrish and believe Blair’s testimony. “The choice between

the two versions of events is essentially a credibility

determination for a jury rather than a weight of the

evidence issue” White, 961 F.2d at 781 (citing Goldsmith v.

Diamond Shamrock Corp., 767 F.2d 411, 416 (8th Cir.

1985). Allowing the jury verdict to stand would not be a

miscarriage of justice because there is sufficient evidence

to support the verdict.

Statements and Conduct of Plaintiff’s Counsel

Next, Bo Gerhardt asserts that plaintiff’s counsel, Mr.

Stilley, attempted to raise issues that the Court previously

ruled inadmissible during the final pre-trial conference.

He alleges that the statements and conduct of Mr. Stilley

prejudiced the jury despite repeated admonishments from

the Court. Mr. Stilley argues that through forgetfulness or

App. 34

oversight, he may have asked objectionable questions, but

that the Court’s admonishments and instructions were

sufficient.

For a violation of an in limine order to warrant a new

trial, the order must be specific in its prohibition, the

violation must be clear, and the violation must prejudice

the parties or deny them a fair trial. Pullman v. Land

O'Lakes, Inc., 262 F.3d 759, 762 (8th Cir. 2001). The Court

notes that plaintiff’s counsel had to be admonished

numerous times during the trial, however, the Court

believes that Bo Gerhardt was not prejudiced or denied a

fair trial. The Court promptly admonished plaintiff’s

counsel and gave the jury curative instructions regarding

any potentially damaging statements by counsel. The

Court believes that these measures were sufficient to

prevent any prejudice that may have occurred without

them.

Remittitur

In the alternative, defendant Bo Gerhardt requests

that the Court offer Blair a remittitur of the damage

award because it was excessive and against the weight of

the evidence. Remittitur is appropriate only when a jury’s

award “is so excessive as to shock the Court’s conscience.”

C.L. Maddox, Inc. v. Benkam Group, Inc., 88 F.3d 592, 603

(8th Cir. 1996) (citing Tys#on Corp. v. Hardrives, Inc., 85

F.3d 343, 347 (8th Cir, 1996)). State law substantive

standards that do not conflict with the commands of the

Seventh Amendment must be followed in reviewing jury

verdicts in diversity cases. Whether to grant a remittitur,

however, “is a procedural matter governed by federal,

rather than state, law.” Schaefer v. Spider Staging Corp.,

App. 35

275 F.3d 735, 738 (8th Cir. 2002) (citing Gasperini v.

Center for Humanities, 518 U.S. 415, 426-38 (1996), and

quoting Parsons v. First Investors Corp., 122 F.3d 525, 528

(8th Cir. 1997)).

The Court finds that a remittitur is inappropriate in

this case. Although the jury could have awarded Blair

nominal damages because he suffered no physical injury,

Bo Gerhardt has not submitted any evidence to show that

a $20,000 award for a battery is so excessive as to shock

the Court’s conscience. Therefore, the court declines to use

its discretion and grant a remittitur.

Costs under 28 U.S.C. § 1332(b)

28 U.S.C. § 1332(b) states that

Except when express provision therefor is other-

wise made in a statute of the United States,

where the plaintiff who files the case originally

in the Federal courts is finally adjudged to be en-

titled to recover less than the sum or value of

$75,000, computed without regard to any setoff

or counterclaim to which the defendant may be

adjudged to be entitled, and exclusive of interest

and costs, the district court may deny costs to the

plaintiff and, in addition, may impose costs on

the plaintiff.

Defendants allege that the Court should deny plaintiff

costs and award costs to the defendants because plaintiff

made a frivolous attempt to assert federal jurisdiction,

failed to prevail on any of his federal claims, and received

a verdict of only $20,000. Section 1332(b) permits, but does

not require, the district court to deny costs when a plain-

tiff’s recovery is less than the jurisdictional amount.

App. 36

Mimaco LLC v. Maison Faurie Antiquities, 221 F.3d 1352,

1357 (10th Cir. 2000) (trial court could grant plaintiff costs

despite award of $20,000 on state law claim) (unpub-

lished). Therefore, the Court will not amend the judgment

pursuant to 28 U.S.C. § 1332 and deny plaintiff costs.

Costs under Federal Rule of Civil Procedure 54(d)

As a threshold matter, it is presumed that a prevailing

party is entitled to costs. See Federal Rule of Civil Proce-

dure 54(d); Bathke v. Casey’s General Stores, Inc., 64 F.3d

340, 347 (8th Cir. 1995). The Court recognizes that it has

discretion to deny costs to the prevailing party, even in the

absence of misconduct by that party. See Greaser v. State

of Mo., Dept. of Corrections, 145 F.3d 979, 985 (8th Cir.

1998); Hibbs v. K-Mart Corp., 870 F.2d 435, 443 (8th Cir.

1989) (discussing discretionary nature of cost awafd under

Rule 54(d) and 28 U.S.C. § 1920).

Defendants argue because plaintiff did not proceed on

the majority of his claims, the Court must consider

whether the costs sought are reasonable in relation to the

success achieved. See Hensley v. Eckerhart, 461 U.S. 424,

426 (1983) and Arneson v. Callahan, 128 F.3d 1243, 1248

(8th Cir. 1997). Defendants assert that plaintiff’s costs

should be reduced, because he received only one half of one

percent (0.5%) of his total monetary claim and prevailed

on part of one count of a six count complaint. Further, the

defendants argue most of them prevailed on all six claims

and it would be unfair to tax defendant Bo Gerhardt, who

lost on the sixth count, with the costs for the entire action.

Defendants’ argument concerning plaintiff’s limited

success confuses the standards to be applied in awarding

costs under Rule 54(d), applicable here, and under civil

App. 37

rights fee-shifting statutes such as 42 U.S.C. § 1988 or

Title VII, as applied in Hensley and Arneson. While ex-

tremely limited success may be considered a factor in

determining whether costs should be awarded under Rule

54(d), see Farrar v. Hobby, 506 U.S. 103, 120 (1992) (ob-

serving that courts have denied costs under Rule 54(d)

“where the victory was purely technical”), the Court is not

required to reduce plaintiff’s cost award based on his

limited success. See, e.g., Institutionalized Juveniles v.

Secretary of Public Welfare, 758 F.2d 897, 926 (3rd Cir.

1985) (stating that limited success does not justify the

penalty of a denial of costs). In the exercise of its discre-

tion, the Court concludes that plaintiff, as a prevailing

party against defendant Bo Gerhardt, is entitled to an

award of his taxable costs against this defendant under

Rule 54(d). The Court will address Bo Gerhardt’s objec-

tions to the bill of costs submitted by Blair when the

matter has been fully briefed.

Conclusion

For the foregoing reasons, defendant Bo Gerhardt’s

motion for a new trial is denied. Defendants’ motions to

amend the judgment to conform to 28 U.S.C. § 1332(b) and

Federal Rule of Civil Procedure 54(d) are denied.

Accordingly,

IT IS HEREBY ORDERED that defendant Bo

Gerhardt’s motion for a new trial is DENIED. [Doc. 157]

IT IS FURTHER ORDERED that defendants’

motion to amend judgment to conform to Federal Rule of

Civil Procedure 54 is DENIED. [Doc. 154]

App. 38

IT IS FURTHER ORDERED that defendants’

motion to amend judgment to conform to 28 U.S.C. § 1332

is DENIED. [Doc. 155]

/s/ :,

CHARLES A. SHAW

UNITED STATES

DISTRICT JUDGE

Dated this 8th day of June, 2004.

App. 39

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

JORDAN BLAIR,

Plaintiff,

v

BOB WILLS, AKA BOBBY

RAY WILLS, AKA W. B.

WILLS, BETTY SUE WILLS, ?

SAM GERHARDT, DEBORAH ?

GERHARDT, BO GERHARDT, ?

JULIE GERHARDT, DREW

PARRISH, BILL CAVITT,

ROBERT O’BRIENT, AARON

SMITH, ROBERT KENNEDY

and MIKE PARDOS, DBA

“MOUNTAIN PARK

BOARDING ACADEMY,”

and PALM LANE BAPTIST

CHURCH INC.,’

Defendants.

Case No. 1:02-CV-88 CAS

eee ee eee

ee ee

MEMORANDUM AND ORDER

(Filed Dec. 2, 2002)

This matter is before the Court on several pretrial

motions, including a motion for a preliminary injunction, and

a request in plaintiffs Amended Complaint for certification of

' The Missouri Association of Christian Child-Care Agencies, Inc.,

was named as a defendant in the initia] complaint, but not in the first

amended complaint. As noted in the body of this Memorandum and

Order, plaintiff has consented to the granting of summary judgment to

this party.

App. 40

a class. Jordan Blair, born November 17, 1984, commenced

this action on July 2, 2002. The gravamen of the complaint

is the alleged mistreatment Blair received at two related

boarding schools to which he was sent after being adjudi-

cated a juvenile delinquent by the Juvenile Division of the

Circuit Court of Crawford County, Arkansas. On Septem-

ber 26, 2002, Blair filed a motion for the appointment of

Susanne Blicharz as his next friend and an amended

complaint “by his next friend Susanne Blicharz.” Blair

asserts in the amended complaint that the Court has

subject matter jurisdiction under 42 U.S.C. §§ 1983, 1985,

and 1988, and under the Fair Labor Standards Act, 29

U.S.C. § 201, et seq. He also asserts diversity jurisdiction

under 28 U.S.C. § 1332, as he is a citizen of Arkansas, and

no defendants share this citizenship, and supplemental

jurisdiction over his state tort claims of battery and false

imprisonment.

The record establishes that on October 24, 2001, the

Juvenile Division of the Circuit Court of Crawford County

ordered Blair, as a condition of probation, to “successfully

complete inpatient/residential treatment at Baptist Boys

Academy in Missouri (or like facility). Said Juvenile is

hereby ordered to comply with all rules and regulations

set by said faculty during said placement period and follow

all after-care recommendations made by said facility upon

discharge.” Blair was immediately transported by a

sheriffs deputy to Palm Lane Boarding Academy in Fior-

ida. On November 9, 2001, he transferred to Mountain

Park Boarding Academy in Missouri, where he remained

until March 15, 2002, when he “escaped.” Blair alleges

* It is not entirely clear from the record which school Blair

attended first. In the amended complaint he states that he was taken

(Continued on following page)

App. 41

that the Palm Lane Baptist Church, Inc., and the Wills

and Gerhardt defendants own and/or operate both schools.

The other individual defendants (Parrish, Cavitt, O’Brient,

Smith, and Kennedy) are staff members at one or both of

the schools.

Blair alleges that he and the approximately 200 other

students at the schools were physically and emotionally

abused on a regular basis, pursuant to defendants’ poli-

cies. He alleges that he and the other students were,

among other things, denied reasonable bathroom privi-

leges resulting in boys urinating and defecating in their

clothing and sustaining urinary tract infections; subjected

to systematic sleep deprivation; forced to take part in born

again Christian religious services; encouraged to assault

and torment other students; and forced to work without

pay in defendants’ profit-making cattle operation. He also

alleges that all of the students’ mail and telephone calls

were censored for any complaints about their treatment.

Blair claims that these actions constituted (1) a

conspiracy to deprive him and the other students of their

constitutional rights, including the right to counsel and

appellate review, the right not to be subjected to cruel and

unusual punishment, and the rights guaranteed by the

First Amendment, all in violation of 42 U.S.C. §§ 1983 and

1985 (Counts 1-4); a violation of FLSA by failing to pay

Blair and the other students minimum wage and overtime

for work they were forced to do (Count 5); and the state

law torts of battery and false imprisonment (Count 6).

from the Arkansas court to the school in Florida and remained there

through November 9, 2001; in his response (Doc. 19) to defendants’

motions to dismiss for lack of personal jurisdiction, he states that he

was at Mountain Park Boarding School during that period of time.

App. 42

Blair seeks to have the other students at the schools (or on

escape status) certified as a class. He alleges that his

treatment at the schools have caused him lasting psycho-

logical problems and he seeks compensatory damages of

$1,250,000, as well as injunctive relief enjoining defen-

dants from engaging in the challenged practices. Blair

cites two cases involving abuses at similar schools run by

defendant Bob Wills, Candy H. v. Redemption Ranch, Inc.

563 F. Supp 505 (D. Ala. 1983),’ and Jn re M. L., a Minor,

519 So. 2d 433 (Miss. 1988).*

Motions to Dismiss for Lack of Subject Matter Juris-

lictj

Two different groups of defendants have filed separate

motions to dismiss this action for lack of subject matter

jurisdiction (Docs. 19 and 27). They argue that Blair has

not set forth any state action, and hence this Court lacks

subject matter jurisdiction over Blair’s claims under 42

U.S.C. § 1983. Attached to one of the motions is the affida-

vit, dated September 25, 2002, of defendant Sam

Gerhardt, superintendent of the Mountain Park Baptist

Academy in Missouri. He attests that the school accepts no

government funds or referrals. Rather, the school, whose

aim is “the salvation and Christian education” of its

* An action claiming civil rights conspiracy, false imprisonment,

assault, and battery, brought by unwed pregnant girls sent to a home

for girls operated by Bob Wills where strict rules were enforced by

corporal punishment.

* Affirmance of adjudication of Bob Wills to be in contempt of court

for failing to comply with injunctions precluding the removal of minors

from a residential facility he operated, and ordering him to provide a

list of the minors residing there with documentation that they were

being lawfully held.

App. 43

students, accepts students only upon the application of

parents accompanied by the payment of fees and tuition.

At the request of parents, the school will send reports to

government agencies including the courts. The affidavit

also states that because Blair “violated our trust, and

because of his age, he is not eligible for readmission to

Mountain Park Baptist Academy.” Also attached to the

motion is a copy of Blair’s parents’ enrollment of Blair into

the Academy, dated October 20, 2001.

The Court first notes that defendants’ arguments go to

whether Blair states a claim under § 1983 and not to the

question of subject matter jurisdiction. The Court will

therefore construe the motions, at least in part, as motions

to dismiss for failure to state a claim. The Court agrees

with defendants that Blair has not shown state action, as

required for a suit against them under § 1983. See Adams

v. Boy Scouts of Am.-Chickasaw Council, 271 F.3d 769,

777-78 (8th Cir. 2001) (a showing of state action is re-

quired to state a claim under § 1983). Where the state “has

so far insinuated itself into a position of interdependence

with a private party” or where there is a “sufficiently close

nexus between the state and the challenged action,” the

state must be recognized as a joint participant in the

challenged activity which therefore cannot be considered

purely private. Jd. Here, the Arkansas court’s order did not

plecs Blair in the defendant schools, but left the choice of

school up to his parents, and there is no allegation of any

state regulation of defendants. The Court concludes that

under these circumstances, state action cannot be imputed

to any of the defendants. Cf. id. (fact that state police

removed an allegedly disruptive individual in response to

call for assistance from defendant did not render defen-

dant a state actor for purposes of § 1983 liability). This

App. 44

ruling renders moot defendants’ motion for an order

compelling Arkansas officie's to provide affidavits concern-

ing the details of Blair’s sentencing.

The Court also concludes that Blair has failed to state

a claim under 42 U.S.C. § 1985(3), because he is not a

member of a class protected by that statutory provision.

See Larson v. Miller, 55 F.3d 1343, 1352 (8th Cir. 1995)

(§ 1985(3)’s protection against civil conspiracies motivated

by invidiously discriminatory animus extends beyond

racial classes to the handicapped, females and “other

suspect-like classes”). Accordingly, Blair’s claims under 42

U.S.C. § 1983 and 1985(3) will be dismissed for failure to

state a claim.

These conclusions do not deprive the Court of subject

matter jurisdiction over the remaining state law claims.

Blair asserts diversity of citizenship, as well as damages

in access of the $75,000 jurisdictional amount set forth in

28 U.S.C. § 1332. Furthermore, at this state of the pro-

ceedings, the Court is reluctant to conclude that plaintiff

cannot state a claim under FLSA. See Tony & Susan

Alamo Found. v. Secretary of Labor, 471 U.S. 290, 298-99

(1985) (commercial activities of religious foundation were

within the definition of “enterprise” under FLSA despite

contention that the businesses ministered to the needs of

the workers by providing them with rehabilitation, food,

and shelter, and were infused with a religious purpose);

Reich v. Shiloh True Light Church of Christ, 85 F.3d 616,

1996 WL 228802, at *3 (4th Cir. 1996) (unpublished per

curiam) (church youth under the age of 16 who did con-

struction work as participants in the church’s vocational

training program were “employees” under FLSA), Defen-

dants’ motions to dismiss the action for lack of subject

matter jurisdiction will be denied.

App. 45

Motions to Dismiss and to Quash Service of Process

f ack of Pe Jurisdiction

There are two motions to dismiss and quash service of

process for lack of personal jurisdiction before the Court —

a joint motion filed by defendants Kennedy, Parish, and

Betty Sue Wills, and a separate motion filed by Palm Lane

Baptist Church, Inc. The individual de‘endants assert that

they are citizens of Florida and have had no contacts with

Blair in Missouri. Parish has submitted an affidavit

stating that he is an employee of Palm Lane Baptist

Church, Inc., and a staff member at the school in Florida

He states that he never traveled to Missouri “for the

purpose of conducting business.” Kennedy has also sub-

mitted a similar affidavit. He attests that his only contact

with Blair was in Florida, Palm Lane Baptist Church, Inc.,

asserts that it is a not-for-profit Florida corporation with

no contacts in Missouri.

In response to the motions to dismiss, Blair has

submitted evidence which establishes that staff members,

including Kennedy and Parish, are regularly transferred

from school to school, and that both schools are closely

interrelated in ownership and operation. He has also

submitted evidence establishing that Palm Lane Baptist

Church, Inc., and Betty Sue Wills are involved in the

operation of the school in Missouri.

When personal jurisdiction is challenged, the plaintiff

has the burden to show that jurisdiction exists. Burlington

Indus., inc. v. Maples Indus., 97 F.3d 1100, 1102 (8th Cir.

1996). Nevertheless, to defeat a motion to dismiss for lack

of personal jurisdiction before trial or an evidentiary

hearing on the jurisdictional issue, the plaintiff need only

make a prima facie showing of jurisdiction. Dakota Jndus.,

Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th

App. 46

Cir. 1991). Furthermore, if the Court relies on affidavits

and other evidence to rule on the motion, the Court must

look at the facts in the light most favorable to the plaintiff

as the nonmoving party. Jd.

In a diversity action, a federal court may assume

jurisdiction over a nonresident defendant only to the

extent permitted by the long-arm statute of the forum

state and by the due process clause of the Fourteenth

Amendment. Porter v. Berall, 293 F.3d 1073, 1075 (8th Cir.

2002); see also Aviles v. Kunkle, 978 F.2d 201, 204 (5th Cir.

1992) (per curiam) (same standard applies to a claim

under FLSA). Missouri’s long-arm statute authorizes

jurisdiction over foreign corporations to the fullest extent

allowed by constitutional due process; therefore, the two

requirements merge into the single question of whether

the exercise of personal jurisdiction comports with due

process. Porter, 293 F.3d at 1075.

Due process requires “minimum contacts” between the

non-resident defendant and the forum state such that

“maintenance of the suit does not offend traditional

notions of fair play and substantial justice.” International

Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). There

are two types of personal jurisdiction — general and spe-

cific. General jurisdiction arises when a defendant’s

contacts with the forum state are so “continuous and

systematic” that defendant may be subject to suit there for

causes of action entirely distinct from the in-state activi-

ties; specific jurisdiction exists when the defendant “has

purposefully directed his activities at residents of the

forum, and the litigation results from alleged injuries that

arise out of or relate to those activities.” Burger King Corp.

v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoted cases

omitted); Burlington Indus., Inc., 97 F.3d at 1103 (“specific

App. 47

jurisdiction refers to jurisdiction over causes of action

arising from or related to a defendant’s actions within the

forum state while general jurisdiction refers to the power

of a state to adjudicate any cause of action involving a

particular defendant, regardless of where the cause of

action arose”).

Upon review of the record, the Court first concludes

that Blair has established a prima facie case of this

Court’s specific personal jurisdiction over defendants Betty

Sue Wills’s and Palm Lane Baptist Church, Inc. The

record indicates that these two defendants own and/or

operate both schools, the one in Missouri as well as the

one in Florida. Thus their contacts with Missouri are

directly related to this action. The Court notes that juris-

diction over Betty Sue Wills is not based solely on status

in Palm Lane Baptist Church, Inc., but rather upon her

alleged direct personal involvement in decisions which

were causally related to Blair’s alleged injuries.

With respect to defendants Kennedy and Parish, the

issues are more complicated. Blair has not established a

prima facie case of the Court’s general jurisdiction over

these defendants based on their contacts with Missouri —

spending limited amounts of time as staff members at the

school in Missouri. Furthermore, these two defendants

have established that their contacts with Missouri are not

directly related to Blair’s claims against them for battery

and false imprisonment. Specific jurisdiction over these

defendants thus does not appear to exist.

As noted above, however, Blair seeks to represent all

students at the schools and seeks injunctive relief on

behalf of the class. Blair’s evidence indicates that staff

members routinely transfer between the two schools. If the

App. 48

class Blair seeks to represent is certified with Blair as the

class representative, injunctive relief against Kennedy and

Parish might well be appropriate based on Blair’s allega-

tions that they directly engaged in physical and emotional

abuse of putative class members. The Court believes the

best course of action is to reserve ruling on Kennedy and

Parish’s motion to dismiss for lack of personal jurisdiction

until the ciass certification matters are resolved. Lastly,

the Court notes that although these two moticns state in

their title that they are also motions to quash service of

process under Federal Rule of Civil Procedure 12(b)(3), no

grounds or arguments are set forth for dismissing the

moving defendants for improper venue. Accordingly, this

aspect of the motions will also be denied.

Request for Class Certification

Blair’s individual claim for injunctive relief is now

moot, as he is no longer at either of the schools and defen-

dants have represented that he will not be accepted back

as a student. The Court concludes that he, nevertheless,

has standing to pursue the issue of certification of the

class of students who are or may be subjected to the

challenged practices. In Sosna v. Iowa, 419 U.S. 393

(1975), the Supreme Court recognized that

there may be cases in which the controversy in-

volving the named plaintiffs is such that it be-

comes moot as to them before the district court

can reasonably be expected to rule on a certifica-

tion motion. In such instances, whether the certi-

fication can be said to ‘relate back’ to the filing of

the complaint may depend upon the circum-

stances of the particular case and especially the

App. 49

reality of the claim that otherwise the issue

would evade review.

Sosna, 419 U.S. at n. 11.

The present case presents just such a situation in

which it may realistically be very difficult for a plaintiff t<

keep an injunctive claim alive long enough to seek lasting

relief on behalf of others. As explained in United States

Parole Commission v. Geraghty, 445 U.S. 388 (1990), the

mootness doctrine, especially in the context of putative

class suits, is flexible and not a “legal concept with a fixed

content or susceptible of scientific verification.” Jd. at 401

(action brought on behalf of class does not become moot

upon expiration of the named plaintiffs substantive claim,

even though class certification has been denied; if the

named plaintiffs appeal results in reversal of the class

certification denial, and a class subsequently is properly

certified, the named plaintiff may adjudicate the merits of

the class claim).

Blair will, accordingly, be allowed to pursue class

certification and representation. See Candy H., 563

F. Supp. at 518 (in action by girls challenging treatment at

a school, named plaintiffs permitted to pursue class

certification even though their claims for injunctive relief

became moot after they filed the complaint). A separate

order shall be issued on this date on these matters.

Motion for a Temporary Restraining Order and a

Preliminary Injunction

Blair’s request for a temporary restraining order and

a preliminary injunction enjoining defendants from

searching for him and forcing him to return to one of their

schools is moot in light of their representations that they

App. 50

would not accept him back as a student. Blair’s request for

injunctive relief on behalf of other members of the putative

class must await further proceedings on class certification

in accordance with this Court’s Order to be issued on this

date on matters relating to class certification.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion

to appoint Susanne Blicharz as next friend is DENIED as

moot as plaintiff has now reached the age of majority.

[Doc. 25]

IT IS FURTHER ORDERED that defendants’

motion for reconsideration of the order admitting Oscar

Stilley pro hac vice is DENIED. [Doc. 26]

IT IS FURTHER ORDERED that defendants’

motion to dismiss for want of subject matter jurisdiction is

DENIED. [Doc. 9]

IT IS FURTHER ORDERED that defendant Mis-

souri Association of Christian Child Care Agencies, Inc.’s

motion for summary judgment is GRANTED, upon

plaintiff’s representation that he does not oppose the

granting of this motion. [Doc. 20]

IT IS FURTHER ORDERED that the motions of

defendant Betty Sue Wills and Palm Lane Baptist Church,

Inc., to dismiss for want of personal jurisdiction and to

quash service of process are DENIED. [Doc. 19; Doc. 19

remains pending as to defendants Drew Parish and Robert

Kennedy].

IT IS FURTHER ORDERED that defendants’

supplemental motion to dismiss for want of subject matter

jurisdiction is DENIED. [Doc. 27]

App. 51

IT IS FURTHER ORDERED that defendants’

motions to dismiss for want of subject matter jurisdiction,

construed as motions to dismiss for failure to state a claim,

are GRANTED with respect to plaintiff’s claims under 42

U.S.C. § 1983 and 1985(3). [Docs. 19 and 27]

IT IS FURTHER ORDERED that defendants’

motion for affidavits is DENIED. [Doc. 23]

/s/ Charles A. Shaw

CHARLES A. SHAW

UNITED STATES

DISTRICT JUDGE

Dated this 2nd day of December, 2002.

App. 52

United States District Court

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

JUDGMENT IN A CIVIL CASE

(Filed Apr. 14, 2004)

JORDAN BLAIR

Plaintiff(s),

v. CASE NUMBER:

1:02CV88CAS

BO GERHARDT

Defendant(s).

Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury

has rendered its verdict.

OO ©Directed Verdict. This action came before the Court

for a trial by jury, the Court having sustained defen-

dant’s motion for judgment as a matter of law at the

close of plaintiffs’ case;

[ Decision by Court. This action came to trial or hear-

ing before the Court. The issues have been tried or

heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that

on plaintiff Jordan Blair’s claim against defendant Bo

Gerhardt, Judgment is entered in the amount of

$20,000.00 in favor of plaintiff Jordan Blair and against

defendant Bo Gerhardt. Court costs are assessed against

defendant.

App. 53

James G. Woodward

CLERK

April 14, 2004

DATE

By: Cathy Gould

Cathy Gould

DEPUTY CLERK

App. 54

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 04-2434/2539/2540

Jordan Blair, * Order Denying

* Petition for Rehear-

Appellant/Cross-Appellee, * ing and for Rehear-

v. * ing En Banc

Bob Wills, etc., ot al., :

Appellees/Cross- °

Appellants. °

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

(5128-010199)

September 29, 2005

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit

rN ns

ae ad

No. 05-845

IN THE

Supreme Court of the United States

JORDAN BLAIR,

Petitioner,

ic

Bos WILLS, 4/K/A Bossy Ray WILLS, 4/K/A W.B. WILLS, Betry SUE

WILLs, SAM GERHARDT, Bo GERHARDT, DEBORAH GERHARDT, JULIE

GERHARDT, Drew PARRISH, ROBERT O’ BRIENT, ROBERT KENNEDY,

D/B/A MOUNTAIN PARK BOARDING ACADEMY, AND

PaLM LANE Baptist CHURCH, INC.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF IN OPPOSITION

JOHN D. BriGGs

T. MICHAEL WARD*

Brown & JAMES, P.C.

1010 Market Street

20th Floor

St. Louis, MO 63101

314-421-3400

* Counsel of Record Counsel for Respondents

199200 g

COUNSEL PRESS

(800) 274-3321 + (ROO) IS9-6859

!

QUESTIONS PRESENTED

(1) Did the U.S. Court of Appeals for the Eighth Circuit

err in affirming the district court’s ruling that Petitioner could

not maintain a civil rights claim under 42 U.S.C. § 1983

(2000), because the undisputed facts showed that

Respondents were not acting under color of state law when

caring for Petitioner while he was at Respondents’ private

boarding schools, and that Petitioner was enrolled at

Respondents’ private boarding schools by his parents?

(2) Did the U.S. Court of Appeals for the Eighth Circuit

err in affirming the district court's ruling that Petitioner’s

perfornsance of chores while at Respondents’ boarding

schools did not constitute “employment” under the Fair Labor

Standards Act, 29 U.S.C. §§ 201, ef seg. (2000)?

(3) Did the U.S. Court of Appeals for the Eighth Circuit

err in affirming the district court’s ruling that Petitioner could

not maintain a state law ctaim for false imprisonment against

Respondents for keeping Petitioner at their boarding schools,

when the admissible evidence below established that

Petitioner was a minor during the time of enrollment and

Petitioner's parents desired and consented to Petitioner's

enrollment with Respondents?

li

STATEMENT UNDER RULE 29.6

In accordance with United States Supreme Court Rule

29.6, Respondent Palm Lane Baptist Church, Inc. states that

it has no parent company, and no publicly held company has

any interest in it.

iii

TABLE OF CONTENTS

Page

CoeGerens PUCNOUNON ii on oak o eeek ceeds aS i

Statement under Rule 29.6.0 oe kc ec hee eee i

ne Oe GN aos ee ee a eS SRR eh ill

Mane OF 4s BOGIES ok So Sos RR eS Vv

URRTRI C8 Te Cee i ne ee ie |

Reasons for Denying the Petition ............... 3

]. Petitioner Has Not Complied With The Rules

Of This Court Because He Has Not

Articulated A Compelling Reason To Justify

Discretionary Review, And His Petition

Contains Matters Not In The Record Below.

PBC ASD paths IN aria ee aah PIRI Geauga 3

II. The Eighth Circuit Properly Affirmed The

Lower Court’s Decisions On The Issues Of

State Action, The Fair Labor Standards Act,

and Faise Imprisonment... 0... kos 5

A. Respondents Were Not Acting Under

Color of State Law When Petitioner Was

Enrolled With Them, 20.0 ee 5

B.

iv

Contents

The Lower Courts Did Not Err In

Finding That Respondents Were Not

Employers And Petitioner Was Not An

Employee Under The Fair Labor

WIROURIGS AGG ies Sea pike eae es

The Eighth Circuit Did Not Err In

Finding That Respondents Were Entitled

To Summary Judgment On Petitioner’s

False Imprisonment Claim, Because

Conclusion

Petitioner Was Enrolled With

Respondents By His Parents, Who Had

The Authority To Make Decisions

Regarding Their Son. 2.5.6 be hie

OO O48 8 OC FiOS 23S OOO Eee OE 8 6 OP OD SB ae

Page

TABLE OF CITED AUTHORITIES

CASEs:

Adams v. Boy Scouts of Am. — Chickasaw Council,

EEL Oe TOP LOU BE) hes ne nh une ees

Bobilin vy. Board of Educ., State of Hawaii,

403 F. Supp. 1095 (D. Haw. 1975) ............

Burton v. Wilmington Parking Auth., 365 U.S. 715

CRIES ieee cre eek ED ORES he Oe

Doe “A” v. Special Sch. Dist. of St. Louis Cty.,

637 F. Supp. 1138 (E.D. Mo. 1986) ...........

Donovan v. American Airlines, Inc., 726 F.2d 415

CRG es I POOE ee eee ase pews eee eee

Goldberg v. Whitaker House Coop., Inc., 366 U.S.

eI ee 55 a) ee ER Reker ee eN hes

Gulley v. Werth, 61 S.W.3d 293 (Mo. App. 2001) ..

Icicle Seafoods v. Worthington, 475 U.S. 709 (1986)

oe € S668 Om OO? EB OC) OU a 8 8 SS OS Os 16. 8s Ow SSO BR RG

In re Monnig, 638 S.W.2d 782 (Mo. App. 1982) ...

Marshall y. Regis Educ. Corp., 666 F.2d 1324

CTE Ee: TE ras oo hs Oe eee ees

Page

vi

— - Cited Authorities

Page

Rankin vy. Venator Group Retail, Inc., 93 S.W.3d 814

(WE AOU. FOG) ec ob ei a awe kee ke eres 9

Rutherford Food Corp. v. McComb, 331 U.S. 722

SEDGE a ok Soke cok 656 ees oe hele ee 7

Walling v. Portland Terminal Co., 330 U.S. 148

CET 6 se in Seo ROE Oe eee es 7

West v. Atkins, 487 U.S. 42 (1988) .............. 5

FEDERAL STATUTES:

EO ns BO ks CEES Se ieee iat rere: i, 6

Me Ws OW PPOs PER ae ee ORO E bw ee i

FEDERAL RULE:

BO TT he os GS eh Lh eee 3

STATE STATUTES:

Sections 211.442, et seqg., R.S.Mo. (2000) ........ 9

Section 431.061.1, R.S.Mo. (2000) ..........06- 10

Section 475.010, R.S.Mo. (2000) ............... 9

section 631.105; R:S:Mo. (2000) 2... 2.6 cece. 10

STATEMENT OF THE CASE

The “iacts” recited in Petitioner’s Statement of the Case

bear little resemblance to the record before the district court

and United States Court of Appeals for the Eighth Circuit

(“Eighth Circuit”).

Mountain Park Baptist Church (“Mountain Park”) was

an independent Baptist church established by Respondent

Bob Will: and his wife, Respondent Betty Sue Wills, in 1987.

The ministry of Mountain Park was to serve troubled teens

through the operation of a boarding academy emphasizing a

secure, structured and disciplined Christian environment. The

ministry grew to include Respondent Palm Lane Baptist

Church. Respondents never received or accepted any funds

from the state or federal government. Respondents never

accepted students from a referrai by a state or federal agency.

Respondents only accepted students who were enrolled by

their parents.

Petitioner was not enrolled with Respondents by the

Arkansas juvenile court as he contends. Rather, he was

adjudicated a juvenile delinquent by the Circuit Court of

Crawferd County, Arkansas. The court placed Petitioner on

probation and, as a condition of probation, he was ordered

to complete a 12-month program of rehabilitation at a

“Baptist boys academy in Missouri (or like facility).”

The juvenile court did not specify a school that Petitioner

had to attend. Rather, it was Petitioner’s parents, Ron and

Jannett Blair, who were to decide where their son would

complete the probation.

At the time of Petitioner’s delinquency hearing, his

parents had already applied to enroll Petitioner with

Respondents. Petitioner’s parents desired that Petitioner be

2

enrolled with Respondents. Petitioner’s parents consented

to enroll Petitioner with Respondents. Petitioner’s parents

paid for his enrollment, not the state.

While enrolled with Respondents, all students including

Petitioner went to school. All students also performed chores

on campus including doing their laundry, cleaning their

dormitory, mowing lawns, clearing brush, painting and

automobile washing. The chores were an integral part of

the learning environment and curriculum of Respondents.

The chores, among other things, allowed students to learn

how to work as a team, and to deveiop senses of

responsibility, accomplishment, pride and confidence to

become more productive members of society.

Petitioner's references to alleged administration of

Thorazine and other drugs, a purported murder before

Petitioner’s enrollment, purported sale of property, and other

issues were not found by or before the courts below. (Pet. at

4-7). Indeed, Petitioner’s references to alleged missed

menstrual periods in relation to the alleged administration

of Thorazine, and other contentions demonstrate that these

allegations and misstatements bear no relation to him in any

manner. (Pet. at 5-6). Since they were not before the courts

below, Petitioner cannot raise them for the first time in this

Court.

3

REASONS FOR DENYING THE PETITION

I. Petitioner Has Not Complied With The Rules Of This

Court Because He Has Not Articulated A Compelling

Reason To Justify Discretionary Review, And His

Petition Contains Matters Not In The Record Below.

“Review on a writ of certiorari is not a matter of right,

but of judicial discretion.” Sup. Ct. R. 10. “A petition for a

writ of certiorari will be granted only for compelling reasons.”

Id. In the instant case, Petitioner has not presented any

compelling reason for this Court to exercise discretionary

jurisdiction to hear this case. The three issues addressed here

and in his Petition were squarely addressed by both the

» district court and the Eighth Circuit. The Eighth Circuit’s

decision is not inconsistent with that of any other circuit court

of appeals. The Eighth Circuit’s decision is not inconsistent

with the rulings of this Court and the Missouri courts of

appeal.

In Point 4 of his brief, Petitioner attempts to implicate

the due process clauses and right to jury trial clauses of the

United States Constitution to support his Petition. (Pet. at 2;

Pet., Point 4, at 24-26). However, such constitutional

arguments were not raised with the Eighth Circuit. Further,

in Point 4, Petitioner contends that he is raising a due process

challenge that was not raised below, when in fact he is merely

challenging the district court’s discretionary rulings on

evidence. There has been no violation of the due process

Clauses.

The Petition should be denied because it contains

references to purported facts or events that were not before

the courts below. Further, the Petition is replete with

4

references to alleged acts and events relating-to persons other

than Petitioner or Respondents. It is axiomatic that facts or

events that were not before the district court and the court of

appeals are not properly before this Court and they will not

be considered by this Court.

The Statement of the Case in the Petition begins with a

diatribe on the conduct of Petitioner’s father, a person who

was not a party to this lawsuit. (Pet. at 2-3). The conduct of

his father has nothing to do with Petitioner’s allegations

against Respondents. Petitioner’s Statement of the Case

contains references to purported administration of

antipsychotic drugs to persons other than the Petitioner.

(/d. at 4). Petitioner’s Statement also contains references

about girls who purportedly missed their menstrual periods.

(1d. at 5). These allegations have nothing to with Petitioner,

or claims that Petitioner has against Respondents. Further,

most of Petitioner’s Conclusion contains references to other

boarding schools and alleged experiences of persons who

are not parties to this case. (Pet. at 28-30). Conversely,

compare the statement of facts in the decisions of the district

court and the Eighth Circuit decisions in the Appendix to

the Petition. (Pet. App. at 3-5, 15-16, 19-20). There is no

reference to allegations of wrongdoing by Petitioner’s father,

purported administration of Thorazine or other drugs or girls

missing periods. (/d.). Since Petitioner cited to facts that were

not before the courts below and Petitioner failed to offer a

compelling rezson for review, the Court should deny the

Petition.

5

II. The Eighth Circuit Properly Affirmed The Lower

Court’s Decisions On The Issues Of State Action,

The Fair Labor Standards Act, And False

Imprisonment.

A. Respondents Were Not Acting Under Color of

State Law When Petitioner Was Enrolled With

Them.

Petitioner wrongly asserts that Respondents were acting

under color of state law when he was enrolled with them.

For a private person to be acting “under color of state law,”

that person must have a power possessed by virtue of state

law and said power must be made possible “because the

purported conduct is clothed with the authority of state law.”

West v. Atkins, 487 U.S. 42, 49 (1988). The private person

must have, and the facts must establish, an “interdependence”

with the state—the symbiotic relationship test. Burton v.

Wilmington Parking Auth., 365 U.S. 715, 725 (1961);

Adams v. Boy Scouts of Am. — Chickasaw Cvuncil, 271 F.3d

769, 777-78 (8th Cir. 2001) (conduct of a private party may

be attributed to the government where the government is in

a position of interdependence with the private party, /.e.,

a symbiotic relationship).

To support the argument that Respondents were acting

under color of state law, Petitioner claims that he was

“committed to Mountain Park by court order.” (Pet. at 11).

However, this is not true. Petitioner was enrolled with

Respondents by his parents. The uncontroverted facts in the

record below established that Petitioner’s parents: (a) desired

that their son be enrolled with Respondents, (b) completed

and submitted an application to enroll Petitioner with

Respondents, and (c) paid the tuition to enroll Petitioner with