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IN THE CIRCUIT COURT OF MERCER COUNTY, WEST VIRGINIA

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,

v. Civil Action No. _______________


Judge _______________________

THE MERCER COUNTY BOARD OF


EDUCATION, ALMA BELCHER,
STEVE HAYES and DEBORAH AKERS,

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

Akers Law Offices, PLLC, and complain and allege as follows:

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.

2. At all relevant times the Mercer County Board of Education (“Mercer

County BOE”) was a political subdivision doing business in Mercer County, West

Virginia. The Court therefore has personal jurisdiction over this Defendant.

3. At all relevant times the individual Defendants were employed by

Defendant Mercer County BOE. Defendant Mercer County BOE is therefore liable for
the individual Defendants’ misconduct, described more fully herein, through respondeat

superior and/or other legal avenues.

4. At all relevant times Defendant Alma Belcher (“Belcher”) was a resident

of and/or worked in Mercer County, West Virginia. The Court therefore has personal

jurisdiction over this Defendant.

5. At all relevant times Defendant Steve Hayes (“Hayes”) was a resident of

and/or worked in Mercer County, West Virginia. The Court therefore has personal

jurisdiction over this Defendant.

6. At all relevant times Defendant Deborah Akers (“Akers”) was a resident

of and/or worked in Mercer County, West Virginia. The Court therefore has personal

jurisdiction over this Defendant.

7. The events giving rise to this cause of action occurred in and about Mercer

County, West Virginia. Venue is therefore appropriately vested in this Court.

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

subject matter jurisdiction over this cause of action.

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

student at Cumberland Heights Early Learning Center (“Cumberland Heights”) located in

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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

and is the Mercer County Superintendent of Schools.

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

son is non-verbal and he was unable to self-report.

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

Defendant Belcher abused and neglected.

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

children such as B.H. is a fundamental constitutional right.

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

respond immediately and consistently to incidents of bullying, harassment, intimidation,

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

to contribute, cooperate and participate in creating an environment in which all students

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.

21. Among other provisions of law, 126 C.S.R. 165-4.2.a.7 requires

superintendents such as Defendant Akers to make decisions that promote the long-term

best interest of students such as B.H.

22. W.Va. Code § 18-2C-3 prohibits harassment, intimidation or bullying of

students such as B.H. That statute furthermore requires notification of parents when any

such prohibited act occurs.

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

facie evidence of their joint and several negligence.

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

school assistance as guaranteed by the State Constitution.

Count I – Negligence/Civil Assault and Battery

26. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

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.

28. As a result of the Defendants’ negligent acts, jointly and severally,

Plaintiffs suffered damages.

Count II – Negligent Infliction of Emotional Distress

29. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

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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.

Count III – Intentional Infliction of Emotional Distress

32. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

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.

34. As a result of the Defendants’ conduct, both jointly and severally,

Plaintiffs suffered damages.

Count IV – Willful Misconduct/Punitive Damages

35. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

36. At all relevant times the Defendants, jointly and severally, acted willfully,

wantonly and with deliberate indifference to the Plaintiffs’ rights.

37. As a result of the Defendants’ misconduct, jointly and severally, the

Plaintiffs suffered damages.

Count V – Constitutional Violations

38. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

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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.

40. As a result of the Defendants’ conduct, both jointly and severally,

Plaintiffs suffered damages.

Count VI – Negligent Supervision/Retention

41. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

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.

43. As a result of Defendants’ misconduct, jointly and severally, Plaintiffs

suffered damages.

Count VII – Human Rights Act

44. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

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.

46. As a result of Defendants’ misconduct, jointly and severally, the Plaintiffs

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

other such relief deemed appropriate.

PLAINTIFFS FURTHER DEMAND A TRIAL BY JURY.

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)