Tennessee - Class action Against U.S. Government and Pest Control Companies, and Pesticide Supply Companies for Malathion Damages
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Subject: Class action Against Malathion...........
Date: Wed, 29 Aug 2001 08:36:16 -0400
From: Stephen Tvedten <steve@getipm.com>
Organization: Get Set Inc. (www.getipm.com)To: Paul Helliker <phelliker@cdpr.ca.gov>
Director, State of California, Department of Pesticide Regulationcc: Christine Whitman whitman.christine@epa.gov
Dear Mr. Helliker, If you will not allow the use of alternatives there will be more of these class actions against the use and the continual misuse of your "registered" POISONS that are obviously and constantly causing chemical trespass!
http://miva.jacksonsun.com/miva/cgi-bin/miva?sp_malathion.mv archives at Jackson Sun on malathion...
http://www.jacksonsun.com/news/malathion_classaction.shtml CLASS ACTION
COMPLAINT Class Plaintiffs bring this action individually, and as representatives of the class of all others similarly situated against Defendants, Southeastern Boll Weevil Eradication Foundation, Inc., An Alabama Corporation, Tennessee Boll Weevil Eradication Foundation, Inc., A Tennessee Corporation, Ron Seward, Boyd Barker, Randall S. Crow, John Charles Wilson, Shannon Bridges, Lee White, Denise Clayton, Chris Craft, Jim Brumley, Dan Wheeler, in his official capacity as Commissioner of Department of Agriculture, H & L Flying Service, Joe Dan Lofton, Larry Flanagan, Gary Paul Noel, Donald Waguespack, David Hill, Nick Busch, Houston Flying Service, Inc., Rick Houston, Tri-County Flying, Gary Denevan, Bryson J. (Jeff) Cooper, Baker Flying Service, Ben Baker, Buenos Gallon, William Brinkley, Joseph Reed, Darren Reiber, Londe Air Services, Inc., John Hedgecock, Michael Getachew, Deral Duncan, James Gannone, Clifford Ash, Worthy Flying Services, L.J. Broussard, Mid-Kansas Aerial, Michael Cooper, Bill Roberts, Fred Gore, Hendrickson Fly Service, Ron Korth, McComnick Aviation, Gene McCormick, Rolland Drown, Don Moore Ag Flying, Don Moore, R. Mark Lorance, Corning Farm Supply. Ronny Oliver, Cumberland Valley Aviation. LLC, William Henly, Kirk Aviation, Ben Kirk, Chad Wood, Mark Bates. Royce Espey. David Uttlejohn, and John Does A through M, and would show to the Court
I INTRODUCTION
1. Class Plaintiffs are citizens and residents of Tennessee who have been damaged in their persons and/or in their properties and/or rights as citizens by the wrongful actions of the Defendants acting under color of law.
Class Plaintiffs bring this action individually and on behalf of all other persons who have been injured by the unlawful spraying of Malathion and/or misuse of Malathion by the spraying or releasing thereof directly and indirectly on the persons and/or properties of the class members. Class Plaintiffs and the class seek injunctive relief and to recover damages for personal injuries and or the taking of and/or damages to and/or destruction of property and/or property rights and/or other rights enjoyed by the Class Plaintiffs as citizens due to the wrongful acts of the Defendants.
II. JURISDICTION AND VENUE
2. The jurisdiction in this Court is founded on 28 U.S.C. §§1343 and 1331 and this action is a brought pursuant to 42 U.S.C. §1983 and §1985 alleging injury to persons and property as a result of the deprivation of federal statutory and constitutional rights and privileges that the Class Plaintiffs and each of them enjoyed as citizens of the United States. Jurisdiction, pursuant to 28 U.S.C. §1343 exists as the Class Plaintiffs herein, on their own behalf and on behalf of all others similarly situated, seek to address the deprivation, under color of law, of their rights, privileges and immunities secured by the Constitution of the United States.
3. Class Plaintiffs aver violations of the Constitution of the United States, including, but not limited to, violations of Amendments 4, 5, 8, 9, and 14 and seek relief pursuant to 42U.S.C. §1983.
4. State claims herein arise from a nucleus of operative facts common with the federal constitutional claims herein and, therefore, this court has jurisdiction as to the pendent state claims pursuant to 28 U.S.C. §1343.
5. Venue is appropriate in this district as certain of the Defendants' wrongful actions took place and the claims of the Class Plaintiffs herein arose within this district and Defendants either reside in or do business in this district.
III. CLASS PLAINTIFFS
6. Plaintiffs, David Perry, Yshelia Perry, Amber Perry and David Perry, Jr., are citizens and residents of the State of Tennessee residing at 3943 Wilkinsville Road, Millington, TN38053.
7. Plaintiffs, Van Daniels and Carmen Daniels, are citizens and residents of the State of Tennessee residing at 2198 McWiliiams Road, Covington, Tennessee 38019.
8. Plaintiffs, Kim Popham and Dale Popham, were, at all times pertinent herein citizens and residents of the state of Tennessee residing at 255 Culbreath Road, Covington, TN38019. They now reside in Georgia.
9. Plaintiff, Evalena Jackson, is a citizen and resident of the state of Tennessee residing at
4293 Beaver Creek Road, Mason, TN 38049.
10. Plaintiff, Katherine Flemings, is a citizen and resident of the state of Tennessee residing at 3911 Wilkinsville Road, Millington, TN 38053.
11. Plaintiff, Rosetta Payne, is a citizen and resident of the state of Tennessee residing at
3911 Wilkinsville Road, Millington, TN 38053.
12. Plaintiff, Mamie Lewis, is a citizen and resident of the state of Tennessee residing at
3611 Quito-Drummonds Road. Millington, TN 38053.
13. Plaintiff Jacquelyn M. Reddick, is a citizen and resident of the state of Tennessee residing at 827 Ray Bluff Road Millington, TN 38053.
14. Plaintiffs, Robert Cole and Diane Cole, are citizens and residents of the state of Tennessee, residing at 282 Cole Lane, Friendship, TN 38034.
15. Plaintiff, Melinda J. Haywood, is a citizen and resident of the state of Tennessee, residing at 290 Cherrydale Lane, Henderson, Tennessee 38340.
16. The Plaintiff, Ray Vickers, is a citizen and resident of the State of Tennessee, residing at 1586 Pickens Store Road, Mason, Tennessee 38049.
17. The Plaintiff, Jerry W. Blair, is a citizen and resident of the State of Tennessee, residing at Route 1, Box 342, Ridgely, Tennessee 38080.
IV. DEFENDANTS
18. Defendant, Southeastern Boll Weevil Eradication Foundation, Inc. [hereinafter SBWEF] is an Alabama nonprofit corporation with an address of Bells Oak Plaza, Suite B,
2424 East South Bend, Montgomery, Alabama 36116, formed for purposes of overseeing and operating the Boil Weevil Eradication Program, and the eradication of the boll weevil through a joint effort of the United States Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) and various state not for profit corporations and/or associations and the Departments of Agriculture in the various southeastern states. It's agent for service of process is Guy W. Carr, Suite 204, 2119 East South Blvd., Montgomery, Alabama36116.
19. Defendant, Tennessee Boll Weevil Eradication Foundation, Inc., (hereinafter TBWEF] is a Tennessee Nonprofit Corporation, formed pursuant to T.C-A. §48-51-101,et seg., with an address of 440 Hogan Road, Nashville, Tennessee, and was formed to perform specific functions under color of state law, namely T.C.A. §43-6-401 et seq to operate and put into effect the boll weevil eradication program in Tennessee. Pursuant to T.C.A. §48-53-102(a)(1), said Defendant may be sued in its corporate name. Its agent for service of process is Larry H. Maxwell, Ellington Agriculture Center, 440 Hogan Road, Nashville,TN 37204.
20. Defendant, Boyd Barker, is the designated Administrator of the Tennessee Boll Weevil Eradication Program and is an officer of Defendant, Tennessee Boll Weevil Eradication Foundation, Inc. with an address of Ellington Agricultural Center, Hogan Road, Melrose Station, Box 40267, Nashville, Tennessee 37204.
21. Defendants, Jim Brumley and Ron Seward, are officers and/or employees agents, and representatives of the Defendants, SBWEF and/or TBWEF, and at all times pertinent herein carried out, put in effect, managed and/or operated the program in Tennessee. Said Defendants are sued in their individual capacities and in their representative capacities with the Defendants, SBWEF and TBWEF, and pursuant to a joint actions and/or venture among the individual and corporate defendants.
22. Defendant, the Honorable Dan Wheeler, is the Commissioner of the Department of Agriculture for the State of Tennessee and pursuant to T.C.A. §§43-6-403,404.406,407,408,
409,421,422,423,426, has imposed upon him certain duties by law. Plaintiffs' bring this action against Defendant, Wheeler, in his official capacity, for injunctive relief only.
23. (a) Defendant, John Charies Wilson, was, at all times pertinent herein, the "Officer In Charge" of the Defendants' activities in Fayette. Hardeman, McNairy, and part of Chester counties within this District, with an address of 17428 Highway 64 E., Somerville, Tennessee 38068.
(b) Defendant, Randall Crow, was, at all times pertinent herein, the "Officer In Charge" of the Defendants' activities in Shelby, Tipton and parts of Haywood counties within this District, with an address of 1350 Old Highway 51, Brighton, Tennessee 38011.
(c) Defendant, Shannon Bridges, was, at all times pertinent herein, the "Officer In Charge" of the Defendants' activities in parts of Haywood and Lauderdale counties within this District, with an address of 250 Whitten Avenue, Brownsville, Tennessee38012.
(d) Defendant, Lee White, was, at all times pertinent herein, the "Officer In Charge" of the Defendants' activities in Crockett, Madison, Henderson and parts of Chester counties within this District, with an address of 1398 Old Hwy. 412 N. Alamo, Tennessee38001.
(e) Defendant, Denise Clayton, was, at all times pertinent herein, the "Officer in Charge" of the Defendants' activities in Dyer, Gibson, Carroll, Lake, Obion, Weakley and Henry counties within this District, with an address of 2000 Forrest Street, Dyersburg, Tennessee 38024.
(f) Defendant, Chris Craft, was, at all times pertinent herein, the "Officer In Charge" of the Defendants' activities in all counties located in Middle Tennessee, with an address of15900 Shaw Road. Athens, AL 35611.
24. (a) Defendant, H & L Flying Service, with a mailing address of 3946 Ci Rd, 634,Cardwell, Missouri 63829, is a flying service contracted, hired or employed by Defendants, SBWEF and/or TBWEF to perform the spraying of the Malathion in Tennessee.
(b) Defendants, Joe Dan Lofton, Larry Flanagan, Gary Paul Noel, Donald Waguespack, David Hill, Nick Busch, are pilots, employees, agents and/or representatives of the Defendant, H & L Flying Service, and are aerial and/or land applicators of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted herein.
25. (a) Defendant, Houston Flying Service, Inc., is a flying service contracted, hired or employed by Defendants, SBWEF and/or TBWEF to perform the spraying of the Malathion in Tennessee. Its agent for service of process being Rick Houston, 1968 River Road, Owensboro, Kentucky 42301.
(b) Defendant, Rick Houston, is a pilot, employee, agent and/or representative of the Defendant, Houston Flying Service, Inc. and is aerial and/or land applicator of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted herein.
26. Defendant, Tri-County Flying, with a mailing address of 8 Post Road, Stanton Tennessee, is a flying service contracted, hired or employed by Defendants. SBWEF and/or TBWEF to perform the spraying of the Malathion in Tennessee.
27. Defendant, Gary Denevan, Jeff Cooper, Bryson J. Cooper, are pilots, employees, agents and/or representatives of the Defendant, Tri-County Flying, and are aerial and/or land applicators of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted herein.
28. Defendant Baker Flying Service, with a mailing address of P.0. Box 642, Covington, Tennessee, is a flying service contracted, hired or employed by Defendants, SBWEF and/or TBWEF to perform the spraying of the Malathion in Tennessee.
29. Defendants, Ben Baker, Buenos Gallon, William Brinkley, Joseph Reed, Darren Reiber, are pilots, employees, agents and/or representatives of the Defendant, Baker Flying Service, and are aerial and/or land applicators of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted herein.
30. Defendant, Londe Air Services, Inc., is a flying service contracted, hired or employed by Defendants, SBWEF and/or TBWEF to perform the spraying of the Malathion in Tennessee. Its agent for service of process being Guy Londe, Jackson Highway, Humboldt, Tennessee 38343.
31. Defendants, John Hedgecock, Michael Getachew, Deral Duncan, James Gannone, and Clifford Ash, are pilots, employees, agents and/or representatives of the Defendant, LondeAir Services, Inc., and are aerial and/or land applicators of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted herein.
32. Defendant, Worthy Flying Services, with a mailing address of Route 1, Box 129-A,Gore Springs, Mississippi, is a flying service contracted, hired or employed by Defendants, SBWEP and/or TBWEF to perform the spraying of the Malathion in Tennessee.
33. Defendant, L.J. Broussard, is a pilot, employee, agent and/or representative of the Defendant, Worthy Service, and are aerial and/or land applicators of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted herein.
34. Defendant Mid-Kansas Aerial, with a mailing address of P.0. Box 128, Learned, Kansas 67550, is a flying service contracted, hired or employed by Defendants, SBWEF and/or TBWEF to perform the spraying of the Malathion in Tennessee.
35. Defendants, Michael Cooper, Bill Roberts, and Fred Gore, are pilots, employees, agents and/or representatives of the Defendant. Mid-Kansas Aerial, and are aerial and/or land applicators of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted herein.
36. Defendant, Hendrickson Fly Service, with a mailing address of 21532 Quinto Road, Rochelle, Illinois 61068, is a flying service contracted, hired or employed by Defendants, SBWEF and/or TBWEF to perform the spraying of the Malathion in Tennessee.
37. Defendant, Ron Korth, is a pilot, employee, agent and/or representative of the Defendant, Hendrickson Fly Service, and is aerial and/or land applicator of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted herein.
38. Defendant McCormick Aviation, with a mailing address of P.0. Box 951, Selmer, Alabama, 36702, is a flying service contracted, hired or employed by Defendants, SBWEF and/or TBWEF to perform the spraying of the Malathion in Tennessee.
39. Defendants, Gene McCormick, Rolland Drown, Gary Hubbard, are pilots, employees, agents and/or representatives of the Defendant, McCormick Aviation, and are aerial and/or land applicators of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted herein.
40. Defendant Don Moore Ag Flying, with a mailing address of Highway 78 South.Ridgely, Tennessee 38090, is a flying service contracted, hired or employed by Defendants, SBWEF and/or TBWEF to perform the spraying of the Malathion in Tennessee.
41. Defendants, Don Moore and R. Mark Lorance, are pilots, employees, agents and/or representatives of the Defendant, Don Moore Ag Flying, and are aerial and/or land applicators of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted herein.
42. Defendant, Corning Farm Supply, with a mailing address of P.0. Box 478, Corning, Arkansas 72422, is a flying service contracted, hired or employed by Defendants, SBWEF and/or TBWEF to perform the spraying of the Malathion in Tennessee.
43. Defendant Ronny Oliver, is a pilot, employee, agent and/or representative of the Defendant, Corning Farm Supply, and is aerial and/or land applicator of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted herein.
44. Defendant, Cumberland Valley Aviation, LLC, with a mailing address of 268 Buckner Dotson Road, Hillsboro, Tennessee 37342, is a flying service contracted, hired or employed by Defendants, SBWEF and/or TBWEF to perform the spraying of the Malathion in Tennessee.
45. Defendants, William Henly, is a pilot, employee, agent and/or representative of the Defendant, Cumberland Valley Aviation, LLC, and is aerial and/or land applicator of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted herein.
46. Defendant Kirk Aviation, with a mailing address of 2244 Boon Road, Louisville, Mississippi 39339, is a flying service contracted, hired or employed by Defendants, SBWEF and/or TBWEF to perform the spraying of the Malathion in Tennessee.
47. Defendant Ben Kirk is a pilot, employee, agent and/or representative of the Defendant, Coming Farm Supply, and is an aerial and/or land applicator of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted herein.
48. Defendants, Chad Wood, Mark Bates. Royce Espey, David Uttlejohn, are employees, agents and/or representatives of the Defendant, SBWEF, and are land applicators of Malathion sprayed upon cotton crops within this district and, improperly, upon the Plaintiffs and the class asserted hereto.
49. Plaintiffs sue the named individuals in their individual capacity and in their official capacities with the Defendants, SBWEF and/or TBWEF, pursuant to a joint venture among the individual and corporate defendants, and with the Department of Agriculture for the State of Tennessee.
50. John Does A through M are unknown individuals and/or entities responsible for spraying Malathion and/or otherwise participating in the joint venture to spray poisons upon the Class Plaintiffs and the Class asserted herein.
51. The individual Defendants and the Defendant corporations, at all times pertinent herein, were acting under color of state law, using public funds and carrying out state policy while joining with state officials in carrying out activities which were triggered by state officials and/or state actions.
52. At all times pertinent herein, the Defendants, operated, controlled and supervised the Boll Weevil Eradication program and were responsible for and acted to spray the pesticide, Malathion, in order to eradicate the boll weevil, acting under color of law.
IV. CLASS ACTION ALLEGATIONS FACTUAL ALLEGATIONS
53. All allegations contained in paragraph 1 -52 herein above are incorporated herein by reference.
54. Acting under color of state law and, in particular, T.C.A. S43-6-401.etsea the Defendant, Commissioner, instituted a "program to destroy and eliminate boll weevils in this state" whereby said Defendant entered into or assisted in the entering into of cooperative agreements with the Defendants, SBWEF and TBWEF, and pursuant to said statute, cotton growers were assessed a mandatory per acre fee to fund, in part, the eradication program. Other funding was provided by the State of Tennessee and the United States of America.
55. Although individual cotton farmers and/or producers are assessed and required by law to submit funds and are required to participate in the eradication program, such farmers exercise no control over the method of or even whether application of Malathion on their crops occurs. The Defendants SBWEF and TBWEF and their agents, representatives, contractees, and employees control both the application, the choice of when, where and the method of application of the poison.
56. Pursuant to T.C.A. §43-6-422, etsea. the Defendant, TBWEF, a Tennessee corporation was formed to carry out, implement and supervise the eradication program under state law. In acting under the color of state law and under the authority granted by the said statutes, the said Defendants, SBWEP and/or TBWEF, contracted with the other Defendants, either as agents, employees, representatives or contractors to cause Malathion poisons to be sprayed or applied to fields and/or lands in this District.
57. Between July 15, 2000 and December 31,2001 the Class Plaintiffs and each member of the class were injured in their persons, properties and/or liberties by the Defendants' spraying or otherwise releasing of Malathion upon the persons and/or properties of the Class Plaintiffs without the authorization and/or consent of the Plaintiffs.
58. Beginning on or before July 15, 2000, the Defendants, in implementing their program, employed airplanes, helicopters and other spray equipment and methods to spray Malathion on growing cotton plants and/or fields.
59. All of the above listed Defendant flying services and Defendant aerial applicators, pilots and/or land applicators and the other named individual Defendants, operated under the specific direction, control and guidance of the Defendants, SBWEF, TBWEF, and their employees, agents, and representatives and, therefore, their acts and omissions are attributable to and imputed to said Defendants under respondeat superior.
60. The Defendants caused Malathion to be used/misused in amounts and/or to accumulate in amounts in excess of the lawfully approved amounts and in a manner inconsistent with its labeling as required by the United States Environmental Protection Agency, said excessive amounts being sprayed on Class Plaintiffs and their lands, homes, and chattels.
61. As the direct and proximate result of the Defendants' wrongful acts complained of herein. Class Plaintiffs suffered personal injuries including but not limited to hospitalization, medical treatment and related expenses, injuries, irritation and injury to their eyes, ears, head, lungs, blood, skin, swelling of tissues, suppression of immune systems, loss of enjoyment of life, pharmaceutical costs, and aggravation of preexistent medical conditions as well as pain, suffering, discomfort, fear, anxiety, and displacement.
62. As the direct and proximate result of the wrongful acts complained of herein, Class Plaintiffs suffered damages to and/or loss of chattels, animals, fish and produce.
63. As the direct and proximate result of the wrongful acts complained of herein, Class Plaintiffs suffered invasion of privacy, unlawful seizure of their property and persons, became prisoners in their own homes and/or were driven and/or displaced from their homes and the taking of their liberty, property and freedom without due process of law and without just compensation.
64. As the direct and proximate result of the wrongful acts complained of herein, the Class Plaintiffs have incurred expenses and have suffered a loss of consortium and fear for family members and of the endangering of their lives and well-being all as a result of the wrongful actions of Defendants.
65. Class Plaintiffs bring this cause, individually, and as a class action on behalf of the following plaintiff class (the "Class") pursuant to Rule 23 of the Federal Rules of Civil Procedure All persons who are citizens and/or residents of Tennessee who lived and/or worked near agricultural fields where cotton was grown during the 2000 crop year and upon whom and/or upon whose lands and/or chattels the Defendants sprayed and/or released Malathion poison without permission or consent.
66. Class Plaintiffs assert that the members of the Class are so numerous and geographically dispersed that joinder of all class members in this action is impracticable. Class Plaintiffs do not know the exact size of the class, but estimate that it will exceed 500 persons.
67. The Defendants have acted on grounds and under color of law generally applicable to the class, in that all members of the class have been injured in their persons or their properties and thereby deprived of rights and privileges guaranteed by the United States Constitution by acts of the Defendants committed under color of law.
68. This action contains questions of law and fact common to the Class which predominate over questions affecting individual members of the Class, including but not limited to the following questions of law a. Whether the Defendants caused the poison Malathion to be unlawfully sprayed and/or released upon the persons and properties of the Plaintiffs; b. Whether the Defendants engaged in the misuse of Malathion, a poison; c. Whether the actions of Defendants were "under color of law;"
d. Whether the actions of the Defendants amounted to assault, battery, trespass and an unlawful seizure and taking of properties, rights, and privileges and violations of Amendments 4, 5, 8, 9 and 14 of the United States Constitution.
69. Class Plaintiffs and members of the class also have common questions of fact related to injuries and damages suffered, i.e., whether the Plaintiffs suffered a. Personal injuries; b. Damages to real property; c. Damages to chattels; d. Diminished and/or destroyed property values; e. Loss of use of property; f. Exposure to health hazards g. Taking of property h. Fear of potential health problems i. Contamination of air space and waters of Plaintiffs j. Ingestion, inhalation and contact with Malathion: and k. Fright, shock and apprehension.
70. A class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Absent of class action, most members of the Class will find the cost of the litigating their claims to be prohibitive and will have no effective remedy at law. Because of the size of the individual Class members' claims, few could afford to seek legal redress for the wrongs alleged here. Without a class action, the Class members will continue to suffer deprivation of their rights and privileges and the Defendants' violations of law will have occurred without remedy.
71. At all times pertinent herein, the Defendants, SBWEF, TBWEF, and the individual Defendants were in charge of and in control of the boll weevil eradication program in the areas where the Class Plaintiffs lived and/or worked. On numerous occasions, the Defendants caused the Class Plaintiffs and their properties to be sprayed with and. therefore, the Class Plaintiffs, to be assaulted by the spraying of Malathion directly upon the Plaintiffs' persons and further trespassed upon and seized Plaintiffs' properties.
72. Such spraying of the Malathion, a poison, upon the person and property of the Class Plaintiffs amounts to assault and battery, trespass, invasion of privacy, and the taking of liberty and property without due process of law in violation of the Constitution of the United States.
73. In carrying out said spraying under color of state law, the Defendants, their agents, employees, contractees and representatives have illegally trespassed upon the properties and invaded the privacy of Class Plaintiffs by spraying Plaintiffs' persons, homes, yards, gardens, ponds, wells, water sources, vehicles and chattels with Malathion without Plaintiffs' permission or consent.
COUNT I CIVIL RIGHTS
74. Class Plaintiffs incorporate the factual allegations set forth in paragraphs 1 through 73 herein above by reference.
75. Class Plaintiffs aver that the above actions, taken under color of state law, by the Defendants and each of them, pursuant to a joint venture, and with the ratification, approval, reckless disregard and/or failure to supervise and/or control on the part of Defendants, Southeastern Boll Weevil Eradication Foundation, Inc. and Tennessee Boll Weevil Eradication Foundation, Inc., and the individual Defendants, violated Class Plaintiffs' rights to liberty, privacy, to be free from unlawful seizure, imprisonment and/or detention and from unlawful, unreasonable searches and seizures and from the taking of their properties without just compensation and due process of law and violated their rights to not have their liberty, property or freedom deprived without due process of law, all in violation of the United States Constitution, Amendments 4, 5. 8, and 14.
The Class Plaintiffs, therefore, have been deprived of federal statutory and constitutional rights secured by federal law pursuant to 42 U.S.C. §1983.
76. The actions of the Defendants were taken under color of state law and are, therefore, violative of 42 U.S.C. §1983, entitling your Class Plaintiffs to recover compensatory and punitive damages as may be determined by a Jury along with attorney's fees, and the costs of this cause.
COUNT II CONSPIRACY
77. Class Plaintiffs incorporate the factual allegations set forth in paragraphs 1 through 76 herein above by reference.
78. Class Plaintiffs aver that the individual and corporate Defendants acted in concert pursuant to a joint venture and as part of a conspiracy to perform the above actions, taken under the color of state law, with ratification, approval, reckless disregard, and/or failure to supervise and/or control on the part of the Defendants, SBWEF and TBWEF, and by acting in concert with the other individual Dependants, all acting under color of state law, violated Class Plaintiffs' rights to liberty, privacy, to be free from unlawful seizure, imprisonment, detention and from unlawful and unreasonable searches and seizures and taking of their properties, and their rights to not have their liberty, property or freedom deprived without due process of law, all in violation of the United States Constitution, Amendments 4, 5, 8 and 14.
79. The actions of the Defendants were taken in concert, and therefore amount to a civil conspiracy to deprive the Class Plaintiffs of their constitutional rights in violation of 42 U.S.C. §1985, entitling Class Plaintiffs to recover compensatory and punitive damages as may be determined by a jury along with attorney's fees, and the costs of this cause.
COUNT III FALSE IMPRISONMENT/UNLAWFUL DETENTION
80. Class Plaintiffs incorporate the factual allegations set forth in paragraphs 1 through 79 herein above by reference.
81. Class Plaintiffs aver that the actions of the Defendants as set forth herein above are in violation of the common law and T.C.A. §39-13-302 and Involve acts which amount to false imprisonment and/or unlawful detention of Plaintiffs in that the Defendants unlawfully acted to confine Class Plaintiffs to their homes or to be removed from their homes against their will and without lawful or just cause therefor so as to substantially interfere with the liberty of the Class Plaintiffs.
82. As a result of said wrongful acts, the Class Plaintiffs sustained injuries and damages and are entitled to recover compensatory and punitive damages as may be determined by a jury.
COUNT IV ASSAULT AND BATTERY
83. Class Plaintiffs incorporate the factual allegations set forth in paragraphs 1 through 82 herein above by reference.
84. Class Plaintiffs aver that the actions of the Defendants as set forth herein above amount to assault and battery in violation of the common law and T.C.A. §39-13-101, in that the wrongful acts of the Defendants constituted a touching of the person for an unlawful purpose without consent.
85. As a result of said wrongful acts, the Class Plaintiffs sustained injuries and damages and are entitled to compensatory and punitive damages as determined by a jury.
COUNT III TRESPASS
86. Class Plaintiffs incorporate the factual allegations set forth in paragraphs 1 through 85 herein above by reference.
87. The actions of the Defendants as set forth herein above amount to an unlawful trespass upon the Class Plaintiffs' properties and, as a result, Class Plaintiffs suffered damages for which they are entitled to recover compensatory and punitive damages as determined by a jury.
COUNT III EQUITABLE RELIEF
88. Class Plaintiffs incorporate the factual allegations set forth in paragraphs 1 through 87 herein above by reference.
89. Class Plaintiffs are entitled to injunctive relief enjoining Defendants from further spraying of Malathion on the person or properties of the Class Plaintiffs.
90. Class Plaintiffs are entitled to injunctive relief requiring the Defendant, Dan Wheeler, as Commissioner of Agriculture of Tennessee to take such necessary and reasonable steps to prevent the Defendants further violation of Class Plaintiffs' rights and to provide for healthcare and monitoring of all persons exposed to the poison against their will and/or without their consent.
PRAYER FOR RELIEF WHEREFORE, Class Plaintiffs pray that the Court;
1. Declare that this action shall be maintained as a class action under Rule 23 of the Federal Rules of Civil Procedure, and certify the Class with the Class Plaintiffs as representatives
2. Declare that Defendants pay the costs of notifying all members of the Class
3. Adjudge and decree that the Class Plaintiffs are entitled to recover compensatory and punitive damages for their injuries, losses, and violation of civil rights, in an amount to be determined by a jury.
4. Award Class Plaintiffs and the Class their costs and expenses of prosecuting this action, including reasonable attorney's fees as provided by law, and award Class Plaintiffs' counsel attorneys' fees from the common fund created by the recovery;
5. Issue an order for injunctive relief that the Defendants cease and desist the spraying of Malathion on persons and their private properties and lands without permission and directing that the Defendants be required to provide appropriate health monitoring, testing, and compensation to those citizens who are exposed to the poison against their will or without their consent.
6. Granting such other and further relief as may be appropriate under the circumstances.
Submitted July 3 by J. Houston Gordon
J Houston Gordon ATTY
114 West Liberty Avenue
Covington, Tennessee 38019-0846
Telephone: 901-476-7100
Telecopier: 901-476-3537Well Mr. Helliker, You will note "they' are clearly starting to sue a few other people than the sprayers of your "registered" POISONS - I think any "official" that demands only "registered" POISONS can "legally" be used to "protect" crops and/or to "control" pest problems should also be sued! I personally believe that you will see that happen. When will it be "legal" (in your opinion) to use safe and far more effective (unregistered) alternatives to control pest problems?
Respectfully, Stephen L. Tvedten
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