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B.H., a minor,
by and through J.H. and Br.H.,
his parents and next friends,
and J.H. and Br.H., individually,
Plaintiffs,
Defendants.
COMPLAINT
Now come the Plaintiffs, B.H., a minor, by and through J.H. and Br.H., his
parents and next friends, and J.H. and Br.H., individually, by counsel, JB Akers and
1. B.H. is a minor child who at all relevant times resided in Mercer County,
West Virginia. His parents and next friends, J.H. and Br.H., at all relevant times resided
in Mercer County, West Virginia. B.H., J.H. and Br.H.’s identities are known by the
Defendants.
County BOE”) was a political subdivision doing business in Mercer County, West
Virginia. The Court therefore has personal jurisdiction over this Defendant.
Defendant Mercer County BOE. Defendant Mercer County BOE is therefore liable for
the individual Defendants’ misconduct, described more fully herein, through respondeat
of and/or worked in Mercer County, West Virginia. The Court therefore has personal
and/or worked in Mercer County, West Virginia. The Court therefore has personal
of and/or worked in Mercer County, West Virginia. The Court therefore has personal
7. The events giving rise to this cause of action occurred in and about Mercer
8. The Plaintiffs’ claims, more fully described below, arise from certain West
Virginia statutory, common law and regulatory causes of action. The Court therefore has
9. The Plaintiffs’ claims, described more fully below, may include, but are
not limited to, those allowed by West Virginia Code § 29-12A-4(c) (2) and/or (4).
10. The Plaintiffs’ claims against Defendants Belcher, Hayes and Akers may
include, but are not limited to, those allowed by West Virginia Code § 29-12A-5(b)(2)
and/or (3).
11. At all relevant times Plaintiff B.H. was a three year old special needs
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Bluefield, Mercer County, West Virginia. Defendant Hayes was and is the principal of
Cumberland Heights and Defendant Belcher was B.H.’s teacher. Defendant Akers was
12. Approximately mid-way through the school year B.H.’s mother was
notified that B.H. was repeatedly abused and neglected by Defendant Alma Belcher.
This information was not previously known to three year old B.H.’s parents since their
13. Upon information and belief, Defendant Belcher’s abusive and neglectful
misconduct included, but was not limited to: B.H.’s hands were glued together for
punishment; B.H. was verbally abused; B.H.’s mouth and nose were forcibly covered to
stop him from crying to such an extent that he was essentially suffocated; B.H. was
illegally and repeatedly placed in a restraint chair in his regular class for long periods of
time; B.H. was illegally and repeatedly placed alone in a restraint chair in a separate
room, at times with the lights off; B.H.’s hair and arms were pulled.
14. Upon information and belief, Defendant’s Belcher’s abuse and neglect
was repeatedly reported by a teacher’s aide to Defendants Hayes and Akers. Defendants
Hayes and Akers were likewise notified that B.H. was just one of several children whom
15. Despite the fact that Defendants Hayes and Akers are mandatory reporters
under W.Va. Code § 49-2-803, they did not comply with their legal reporting duties. In
fact, Defendants Hayes and Akers appear to have never reported Defendant Belcher to
legal authorities.
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16. Article XII of the Constitution of the State of West Virginia requires a
thorough and efficient system of free schools. It is well-settled that the education of
17. W.Va. Code § 18-2C-1 declares that a safe and civil environment is an
educational necessity.
18. 126 C.S.R. 162-3.2 requires all West Virginia public school employees to
violence or any other code of conduct violation that impacts negatively on students.
19. 126 C.S.R. 162-4.2.2-3 requires all West Virginia public school personnel
are accepted and free from harassment, intimidation, bullying and violence.
20. 126 C.S.R. 162-4.2.5 requires all West Virginia public school personnel to
immediately intervene in any code of conduct violation that has a negative impact on
students.
superintendents such as Defendant Akers to make decisions that promote the long-term
students such as B.H. That statute furthermore requires notification of parents when any
23. The foregoing is not an exhaustive list of the Defendants’ individual and
collective legal duties and obligations. However, the law clearly provides protection for
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students such as B.H. and his parents from the specific acts of misconduct described in
this Complaint.
24. The provisions of law described herein largely if not wholly involve
public safety statutes. Defendants’ violation of those statutes is, at a minimum, prima
25. B.H.’s parents removed him from Cumberland Heights upon notice of
Defendants’ misconduct. He and his parents are therefore no longer receiving any public
27. At all relevant times the Defendants, jointly and severally, had a duty to
use reasonable care towards three year old B.H. The Defendants breached their duty to
use reasonable care including but not limited to three year old B.H. suffering from
repeated civil assaults and batteries along with negligent failures to report and remediate
the misconduct.
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30. The Defendants’ actions, jointly and severally, were of such a nature as to
result in a negligent infliction of emotional distress upon three year old B.H. and his
parents.
31. As a result of the Defendants’ actions, both jointly and severally, Plaintiffs
suffered damages.
33. The Defendants’ actions, jointly and severally, are of such a serious nature
that they resulted in an intentional infliction of emotional distress upon the Plaintiffs.
36. At all relevant times the Defendants, jointly and severally, acted willfully,
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39. The Defendants’ actions, jointly and severally, violated three year old
B.H.’s constitutional right to an efficient education that was free of bullying, harassment
and abuse.
42. At all relevant times Defendants Hayes, Akers and Mercer County BOE
had a duty to supervise the relevant Defendants under their chain of command. The
Defendants failed to uphold their duty of supervision along with negligently retaining the
at-fault employees.
suffered damages.
45. At all relevant times three year old B.H. was a disabled and protected
person pursuant to W.Va. Code § 5-11-1 et seq. The Defendants’ misconduct violated
W.Va. Code § 5-11-1 et seq. as a result of B.H.’s mistreatment due to his disability and
age.
suffered damages.
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WHEREFORE, the Plaintiffs demand judgment against the Defendants, jointly
and severally, in such sums as will fairly and fully compensate them for the damages
sustained as a result of the Defendants’ illegal conduct, together with pre-judgment and
post-judgment interest, attorney’s fees, costs of the proceeding, punitive damages and any
B.H., a minor,
by and through J.H. and Br.H.,
his parents and next friends,
and J.H. and Br.H., individually,
By Counsel
_______________________________________
JB Akers, Esq. (WVSB #8083)
Akers Law Offices, PLLC
128 Capitol Street
P.O. Box 11206
Charleston, WV 25339
(304) 720-1422
(304) 720-6956 (Facsimile)