West Virginia E-Filing Notice CC-02-2019-C-89 Judge: Laura Faircloth To: J. Leslie NOTICE OF ELECTRONIC FILING IN THE CIRCUIT COURT OF BERKELEY COUNTY, WEST VIRGINIA Attorney General v. Christina Lester The following motion was FILED on 11:31:29 AM Notice Date: 5/7/2019 11:31:29 AM Virginia Sine CLERK OF THE CIRCUIT Berkeley 380 W. South Street MARTINSBURG, WV 25401 (304) 264?1918 belinda.parsons@counswv.gov E-FILED 5/7/2019 11:31 AM Berkeley County Circuit Clerk Virginia Sine BERKELEY ?13.51? VIRGINIA OE ex rel. and int'antra under the age ol?eighteen years. l?laintii?t?. ACTION NO. .ll HOV. lES?l ER. .ll'XE ?i?lleSll. KRISTIN AMBER HOECK ll IE BERKELEY (?Ol BOARD OE Defendants. NOTICE. OF MOTION RULE 15 PLEASE l?atri'ek \Iorrisey. Attorney General [or the State of Virginia. on behall?ollkl). and O. R. infants under the age ot?eighteen years. by and through Senior Deputy .Xttorney General J. Robert Leslie. ill bring on I?m hearing. the attached Marion (0 Amend Camp/aim. before llonorahle Virginia Sine, in her eourtrooni located at 380 West South Street. Suite 300. Martinsl?iurg- \?x?est Virginia 2540]. at a date and time to be determined by the Court. You are invited to attend and protect your interests as they may appear. Respectfully submitted. . J. SI-NIOR DIVISION 208 (?npiml Street. 3rd I?lnnr I?nsl 130x I789 West Virginia 353364789 ("304) 558-0546 cx I). and 0. R.. infants under the 1ng nr?cighiccn years. IV BERKELEY VIRGINIA \?IR?ile-?t. ex rel. and O. R.. infants under the age t.)feighteen yearn: Plaintiff. Jl HON. KRISTIN And BOARD IZDI Defendants. MOTION TO AMEND eomes I?ntriek Attorney Genera} for the SICIIC of \V?ent Virginia. (in behalf of and R. infants under the age ofeighteen yearn. by and through Senior Deputy Attorney (ienerul J. Robert I who and ?les this .I'fomm (burp/mm. pursuant to Rule IS of the Virginia Rules ofL?iV'iI Procedure. stating the in support thereof: l. l?laintill? l?atrielx (ieneral l'or the State of West \VA?irginia. on hehalt?ol?Al?. and R. infants under the age ol?eighteen years tiled Complaint 2019-(7-89011 February l9. LJ. pursuant to West Virginia (.?ode 9' S?l l~2tl and Rule ol?the West Virginia Ru es ott'it'il Procedure. l?laintil?l?diseorered additional lacts demonstrating that others bear a share ol' liability in addition to those defendants named. Aeeordingl}; l?laintilli tiles this to .-\mend Complaint in an el?l?ort to bring all those potentially liable bel?ore the Court in an ell'ort to obtain a lull adjtulieatirm. Leave to amend "shall be freely given when justice so demands? there fore motions to amend should always be granted where amendment permits presentation on merits of actions. adverse party is not prejudiced by sudden assertion ot?suhieet ot?amendment. and adverse party ean he giren ample opportunity to meet issue. Rules ol?Civ. Pro. Rule lita). .l/uuek (in! of l987. 357 Slild 775. 178 93; r. (Ill/t Inc? 210 324. 557 S.l?.2d 378. 4. A copy ol? the proposed tulip/aim is attached hereto a5 Exhibit 1. WI lliRlil-?ORIL. {or good cause shown. l?atriek Morrisey. General l?or the State ot? \K'est Virginia. on and 0. R. infants under the age ol?eighteen years respectfully requests. that lhis tribunal the 'rwzp/umr and for such other rcIicI'as [he (hurt reasonable. submitted. OF WEST VIRGINIA. ex rel. A. and 0. R.. infants under age yearsSENIOR CIVIL DIVISION 208 ("apiIuI Street. 3rd Floor I?osl Box 178?) W091Virginia25336-1789 (304) 553-0546 THE OF BERKELEY WEST VIRGINIA ?1391' ex rel. P. and 0. R.. infants under the age ul?eighteen wars. I?luintil't?. .ll HON. LACRA CI .HNIC Yt'RlSliHr. COUNTY (31? EDI I'Jei?entinntsRnhert Leslie. Senior Depth} Attorney (ieneral at the State 01? West Virginia. hereby certify than the foregoing .11?!!er Amend 'ump/uinl nag rserx ed the l'niimx ing. by depositing1 :1 true copy thereof in the United States mail. ?rst pmtuge prepaid, en the day of May. 2010. addresnecl as [?oiitm?s: in: Christina Lester. Pru Be 010 Jefferson Avenue Charles 'l?rmn. West Virginia 2?4l4 enpy we; serxed hy electronic mail to: Christian J, RiLiLleIl. Iisq. Lam- (Jl?iiees nl? Stedman c?t Riddell 32?) South Queen Street Mailinshtu'g. Virginia 2540i (.ft?iunsci for Defendants Yurislt and Kristin Thu nrigintti was ?led electronically this LiillL? upon: The Iit'inm?nhlc Virginia Sine County Circuit C'icrk .ludicizii Circuit 380 South Sti'cct. Suitc 2300 West Virginia 3540] Wow-1 I.csli_c_ . ROBERT H?Si/lli SENIOR DIZPI MEGAN C. GOODAH. DIVISION 208? Capitol Stt'cct, 3rd Post Of?ce Box 178?) Clutricstun? West 35336-1780 (304) 558-0546 IN (DIRT VIRGINIA I RICK (ll-i \VliS VIRGINIA. itt? rd. A. I). and I). infants LigL? wars. I?Iuintift?. (fl LliSTliR. DOIFIY. A .VIBI-IR KI RSI-TY. And 'fl Ili BOARD OF :1 nts. FOR INJUNCTIVIC RELIEF AND CIVIL comes Patrick Mort'iscy. At?tt?irncy for the State of West \-?it?giniat. on behalf and O. R- infants undoi' the age years. by and through Senior Dcptity Attorney General J. Robert Leslie. pursuant to West Virginia Code I-20 and Rulc (35 of the West Virginia Rules ofCit?iI Proccdurc. and hereby seeks :1 Rights Injunction enjoining the above? named Defendants from certain discriminatory and illegal behavior as set out in detail below. In hereof. tho and alleges ats follows: l. The Plaintiff is the Attorney (ieneral of the State of West Virginia who has a statutory duty to protect the human and il rights ofall persons yvithin the State?sjurisdictional confines. 7 Beginning on or about I3. 301?). the Office ofAttorney (ieneral received multiple constituent complaints regarding the unlawful and discriminaun'y conduct described below. Such complaints prompted l?atriek Morrisey. as Attorney ('ieneral of the State of West Virginia to initiate an immediate ciyil rights investigation. The following complaint is based upon the findings ofthat in\ estigation. is an infant. under the age ofeighteen. is non?verbal as a result ofautism. and 42.! for all tunes releyant in this action was a student at Berkeley Heights lilementary School in a special needs class. 4. R. is an infant. under the age ofeighteen. is non-verbal as a result ofautism. and for all times relevant in this action ?as a student at Berkeley lleights lilementary School in a special needs class. 5 We Defendant Christina fester upon information ofhelief. is a resident ochrk?eley County. \K'est Virginia. and at all times relevant herein served as special education teacher for the Berkeley (?ounty Board oflidueation and as such is a mandatory reporter ofsuspected child abuse or neglect pursuant to Virginia Code The Defendant .lune Yurish upon inforn'tation of belief. is a resident of Berkeley County. West \'irginia. and at all times relevant herein served as special education teacher's aide for the Berkeley County Board ofliducation and as such is a mandatory reporter ofsuspeeted child abuse or neglect pursuant to ?Est Virginia Code .7. The Defendant Kristin Douty upon information ol?l?ieliet'. is a resident ot?~ Berkeley County. \Vest \v?irginia. and at all times reley ant lterein seryed as special education teacher's aide tor the Berkeley County Board ot?lidueation and as such is a mandatory reporter ot'suspeeted child abuse or neglect pursuant to \k'est (?ode 8. the Detendant Amber Boeekntann upon information or belief. is a resident ol? Berkeley County. \\'est Virginia. and at all times releyant licrein seryed as the Principal of Berkeley Heights lilementary School for the Berkeley County Board ol? liducation and as such is a mandatory reporter ot?suspeeted child abuse or neglect pursuant to \Vest Virginia (.?ode ?49-2? 303m. The Defendant Margaret Kursey upon information of belief. is a resident 01? "Berkeley (County. West \-"irginia. and at all times relevant lterein served as a Deputy Superintendent tor the Berkeley County Board ol' lzducation and as such is a mandatory reporter ol'suspceted child abuse or neglect pursuant to West \-?irginia (.?ode It). the Del'endant. Berkeley County Board at [iducation is a county gmrernmental hoard \\itlt its principle place ot'husiness located in Martinsburg. Berkeley County. ll. 'llte incidents complained ot" herein occurred in Martinsburg. Berkeley County. West Virginia. 1" 'l'lte requirements of both subject matterjurisdiction and yenue are satisfied under the provisions Code S-l 13. Amber Pack is the mother ot~ and has a statutory and moral obligation to protect and proy?ide for her child. M. or about October 3. 3018. I). returned from attending school at Berkeley Heights lileincntary School \yitli bruising on her upper arms consistent with being grabbed in a physical manner \yhich placed Pack under a reasonable and good faith basis to suspect her child. was being subjected to threats. abuse. and or intimidation while her child attended special needs classes at Berkeley Heights lilcinentary School. l5. Based upon this belicl?. on October 4. Bill 8. l?ack placed a recording deyice in hair belore sending her to school. In doing so. l?ack \"icariously consented to the recording on to. Berkeley Heights lulementary School is a public school located in h-?lartinsburg. Berkeley County. \\?est \-'irginia. 17. On October 20] 8. A. wore the recording device placed by Ms. I?ack into a public classroom occupied by Defendants as well as occupied by 0. R.. another special needs child. l8. 'l?hc public classroom into which A. wore the microphone as not a private place and its occupants held no legally recognized reasonable expectation of priyacy. microphone recorded the ambient sounds other public classroom as \yell as the content ol?certain statements directed at both A. and (J. R. 20. We comments ol?the and each ot? them. depicted on the recording and directed at A. and O. R. include threats ot' violence. Verbal abuse and other outrages. 31. or about (.ictoher 5. INS. Ms. l?aek took a portion of the recording to the Police Department hen Pack made a criminal report ol?ehild ttlittse to Patrol (it?ticer Brittany (.?onner. 22. On October 5. EMS. ()t'ticer ('onner and two other uniformed ot?tieers ol? the Berkeley Police Department responded to Berkeley Heights l'ilenientarfr School where the ol?lieers planed portions of the tape tor Detendant Boeekmann. and informed her ot?the allegations made by Ms. Pack. JJ Immediately ttpon speakingI with the of?cers. Delendant Roeekmann int'ormed ed to segregate ie ot?tiee. but t?ai Yttrish and Dout} otthe al egalions. called Ytirish and Douty tot them as the} reported to the of?ce. 24. Defendant Hoeekniann did not take a detailed statement l'rom either Yurish or Dont}. instead informed them a statement would he taken Monday and sent them home tor the \t-eekend. 25. or about Detoher 5. 2018. at'ter speaking nith the police ot?tieers and hearing. the tape. Defendant Boeekmann int?ormed Defendant Kursey at the Berkeley County Board of Iidtteation ol?the allegations and the content of the tape. On October 7. 2018. Det?endant Kinsey recognized the need for an investigation and instructed Defendant Boeekmann to conduct a school le\?e int-?esngation. Del?endant Boeekmann was specifically instructed by to listen to the entirety ?kJ ol? the tape and report its content in the course 01' Boeekmanns investigation. 28. According to Boeekmann. the Detendant Kinsey instructed Boeckmann to then have Amber l?tiek destroy the tape going rise to this and the related actions. limit intonnation and helieI?. hen Defendant Hoeekmann reported the tindings of her investigation to the Board otlice. she pro\ ided incorrect. l?alse. or misleading inl?orntation by asserting that she had listened to the tape and that the tape did not depict ol'l?ending statements directed at the special needs students. but instead consisted of the adults interacting with each other. 30. On Octoher 0. 2018. Pack sent Special Needs Coordinator Karen Pettrucei an email link to the ()etoher 5 tape. 1. On October I l. alter receixing no response. Pack again sent the same email to l?ettrucci and this time l?orxxarded Copies ol' the email to Stipcrintendent Manny Arron and Superintendent Banks. ?32. On Oetoher 30. 20W. Pack met with representatix'es ol'the Del'endant Berkeley County Board ol' liducation to discuss P. returning to classes at a new school. During this meeting Pack learned that Delendants lester. Yurish. and Douty were still teaching at Berkeley 1 leights lilementary and that no apparent action had been taken to safeguard other special needs children l'rom snll'ering the abuses ol'the kind depicted on the recording. ?13 Immediately thereal?ter. on (.Jetoher 2018. Ms. Pack posted inl?ortnatit?tn concerning. the incident on her social media feed. 34. On October 31. 2018. Ms. Pack posted the rceording on her social media iced. On Not'eniher 2. 3018. Ms. Pack inquired whether the Defendant Board intended to undertake an} investigation. so. On November 3. 2018. Ms. Pack was intorined that those int olved had been placed on leave. llowerer. Detendant Lester was still in the clz'tssroom. (in November 14. 3018. a report was tiled for the first time by Pack with (?hilcl Protective Heryices regarding the incidents of October 4. L?Ulh?. ITpon inli?n?titntirrn and beliefthat Complaint was screened out when was informed by the Board of that the tape only depicted two adults speaking to each other and not speaking to students. second report was made on \oyemher to; 3018. which later proyides the basis of CPS's finding ofahttse. 38. On December 4. 3m 8. the Defendant Berkeley County Board oflidtteation allowed the Defendant lester to resign from her employment. On February I4. 20] the Defendant Berkeley Board ofl-iclttea?ttion allowed the Defendants Yttrish and to resign from their employment. HS 40. '[he Plaintiffadopts by reference each and eyery allegation set forth in Paragraphs One through 'l?hirty-nine as if fully set forth herein. ~ll. West Virginia Code 5* 5-1 proyides a cause of action exelttsiyely for the Attorney (ieneral to seek an injunction against any person who intentionally interferes or attempts to intentionally interfere by physical force or yiolenee against a person or by threat by force or violence. or attempts to so interfere. with the exercise or enjoy-'tnent by any other person ofthose rights secured by the \?y?est \-'irginia Human Rights Act or the West Virginia Pair l-lottsing AC1. 43. :M?ctit'dingly. Defendants leSter. Yurish and Douty who are adults placed into a position ot'trust regarding P. and R. as educational professionals. verbally assaulted A. and 0. R.. non-\ erhal. special-needs children. threatening each ot?them with physical Violence. TWO WI WITH T0 RI RIGHTS INDER RIGHTS ACT 43. The Plaintii?l?ttdopts h} reference each and every allegation set Torth in Paragraphs One through Forty?mo (43) as il' Tully set t'orth herein. 44. West Virginia Code 9? 49-3-803ta) states. tat school teacher or other school personnel. who has rcamnahle cause to suspect that a child is neglected or ahttsed. including nexual ahuse or sexual assault. or ohsertcs the child hcing r?tthiccted to conditions that are liltcl} to result in ahttse or neglect shall immediately. and not more than 34 hours at?tcr suspecting this ahuse or neglect. report the circumstances to the Department ol' llealth and Resources. Defendants Lester. Yttrish. and are each "mandatory reporters." under \Nest Virginia (.?ode gi-IQ-B-ls?t?tal. 45. I.'nder West Virginia Code Tester. Yurish. Douty. Boeckntann. and Ix'urse)? each had a non-delegahle duty to report the suspected abuse to Child re intormz-ttion which Protective Services \xithin twenty-tour (24) hours ol' the receipt 0T 1 reasonal?rl; did or should have git'cn rise to a reasonahlc suspicion that abuse or neglect may have occurred . 46. Defendants liester. Yurislr Bout}: Boeekmann. and Kursejr eaeh failed or refused to eontaet (PS to the report the alleged abuse as required lay law. ~17. Moreover. hoth Deletidants Hoeekntann and Kursey aeti\el_\' tried to hinder the ltt\ estigation and obscure ex idenee. 48. In tailing and-"or refusing to report. each of the above-named Defendants Lester. Yurish- Hoeektnann and Kursey iolated West Virginia (?Ode 492-803(21) thereby subjecting A. (J. and all other similarly situated speeial need students to the risk at continuing abuses ol?the kind depieted on the Uetoher -l tape. l3} tailing to report as required h} law. all ali'treinentioned defendants interfered "with the exercise or enjoyment hy any person ot'those rights secured by the West Virginia Human Rights ('(JlfN'l? 'l'l lth?li. BY RliSl RlCill'l?S RICH MS 50. the l?laintil?l'adopts by t'elei?eitee' each and every allegation set t?orth in l'htr?ttgraphs One through as it' lull} set l?orth herein. Upon information and beliel?. the administrators at Berkeley Heights Elementary Sehool andror at the Berkeley County Board 01? lidtteation. speeilieally including but not limited to Boeektnann and lx'urse}; lailed to take reasonably expected action or eondaet a reasrmahle investigation into this alleged abuse. 53. Ruthcr. and lx'urscy's actions to hc calculated to hidc rcalitics of a purported uhuxc \x'ithin special education class and thcir actions: did not inci?caisc likclihood ('it?zin uccuraitc inwstigatix ?nding. hut instcad the acts were calculated to minitnulizc 3 53. More importantly. upon inlormution and hclicll and or mislcading. 5?1. conducting it Natural and incl?lcctivc investigation. and Kurscy "with or by (my pcrson ot? thosc rights sccurcd by the \cht Virginia Human Rights 1401 ZR BliRKl-ililiY (?01 BOARD ("Jli? 54. 'l?hc l?luintitl?adopts catch and c\?cr} Lillcgutioii set Forth in Paragraphs ()nc through l-?il?ty-tlircc (53) us il? l?ull)? act l'ortli licrcin. 52. l?or ull tinics hcrcin. Yurish. Dom); and Kurscy. individuall} and its hci'cin. \x'crc acting"? within scopc ol'thcir by Dcl'cndunt. Count). Board ol'liduczttion. 53. In so acting. ?i'urish. Douty. Bocckmann. and l'x'urscy or scrvants ot'thc Count) Board ol?liducution which acts through thcm. thus suhiccting Board to sumo liuhilitics as individual dcl?cndunts. 10 ()l7 thiill'l? 54. Patrick \lorrisey. \Vest \"irginia (icn?eral. reserves the right to name additional delend:.ints and-?or plead additional counts as the investigation into these matters continue. li Plaintill'Statc Virginia respectfully requests this Court to enter the t?ollovving reliet?: l. linter a Preliminary lniunetion and a Permanent lnjunetion enjoining each 01? the al?rove-intmed Delcndants l't'om: a. assaulting. using physical three or violence. threatening to use physical l?oree or violence. intimidating. coercing or harassing. or attempting to assault. use physical three or violence. threaten to use physical l?orcc or violence. intimidate. eoeree or harass A. or O. R. motivated h) hias based upon race. color. religion. sex. ancestry. national origin. political i-il?liliation. or disahility: h. assaulting. using physical force or violence. threatening to use physical t'orce or iolence or attempting to use physical three or violence on any person motivated by bias hased upon race. color. religion. sex. ancestry. national origin. political at'liliation. or disability: e. causing or attempting to cause damage to or trespass upon the prt'iperty where A. or R. reside. and any other person motivated by bias hased on race. color. religion. sex. ancestry. national origin. political affiliation. or disability: 11 assaulting. using physical three or yiolenee. threatening to use physical force or iolencc. intimidating. coercing or harassing. or attempting to assault. threaten. intimidate. coerce or harass any person or causing or attempting to cause damage to or trespass upon the property ot'any person hccausc he did or might complain o'l?or testil?y ahout acts alleged in this Complaint or acts prohihited hy West \-'irginia or l-?ederal law. or did or might cooperate in any concerning such acts; speaking to. telephoning. \yriting or otherwise communicating with the immediate lamily mcmhers or P. or 0. R. except through attorneys in order to prepare for Defendants defense in any criminal prosecution: lsnoyy-?ingly approaching within 500 t?eet ot' any location they know or suspect is occupied hy or U. R.. and 'or their respectiy'e immediate t'amily members: g. encouraging or causing any other person to engage in conduct prohibited in pz-tt?agraphs ahoy e. or assisting any person in engaging in such conduct. 2. linter a Preliminary Injunction and a Permanent Injunction enjoining each of the almye?named Defendants t?rom occupy ing any position. paid or \?t?ilunteer. in which they exercise and superyisory duty or obligation to infants under the age ol?eightcen \yithin the State of West Virginia. l)eclare that the Detendants hayc each \?iolated the West Virginia Human Rights Act. W. Va. Code 3" l? l. e! seq. 4. Order each incliyidual Defendant to pay a civil penalty ot? $5000.00 per defendant. or in an appropriate amount to he established by the (.?ourt. for each iolation. 12 5. Order each and comply with Ihcir obligations under W051 Virginia Code Illml'c incidents. ()rdcr {ho IDCI?cndunIs~ [0 my the I'L?asonahIc attorney's I'ccs and c0515 of the asmcialcd \xilh LImIIing. arguing ol? lhis mnlion and UI?zmy rcsuIlanI m?dcr, (imm other such I'cIicI'as isjusl and proper. cx' rcI. O. R.. inl?unls under the 2.1gc0I?cighIccn years. MORRISIW .I. SENIOR CIVIL 208 Camila! 3rd I-?Inm? Post Of?ce Rm: 178?) ('halz?IcSh'm. \Vcsl (304) 558?0546 13