WV Regional Jail and Correctional Facility Authority v. The Estate of COdy Lawrence Grove ( 2020 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2020 Term
_____________ FILED
November 20, 2020
released at 3:00 p.m.
No. 18-1076 EDYTHE NASH GAISER, CLERK
_____________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
THE WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY,
Defendant Below, Petitioner
V.
THE ESTATE OF CODY LAWRENCE GROVE,
Plaintiff Below, Respondent
________________________________________________
AND
_____________
No. 18-1083
_____________
JOSHUA DAVID ZOMBRO,
Defendant Below, Petitioner
V.
THE ESTATE OF CODY LAWRENCE GROVE,
Plaintiff Below, Respondent
________________________________________________
Appeals from the Circuit Court of Berkeley County
The Honorable Laura V. Faircloth, Judge
Civil Action No. 17-C-529
REVERSED AND REMANDED WITH INSTRUCTIONS
________________________________________________
Submitted: September 16, 2020
Filed: November 20, 2020
Matthew R. Whitler Paul G. Taylor
Anthony J. Delligatti Martinsburg, West Virginia
Pullin, Fowler, Flanagan, Brown Attorney for the Estate of
& Poe, PLLC Cody Lawrence Grove
Martinsburg, West Virginia
Attorneys for the West Virginia
Regional Jail and Correctional Facility
Authority
James W. Marshall, III
Bailey & Wyant, PLLC
Martinsburg, West Virginia
Michael W. Taylor
Bailey & Wyant, PLLC
Charleston, West Virginia
Attorneys for Joshua David Zombro
JUSTICE JENKINS delivered the Opinion of the Court.
2
SYLLABUS BY THE COURT
1. “A circuit court’s denial of a motion to dismiss that is predicated on
qualified immunity is an interlocutory ruling which is subject to immediate appeal under
the ‘collateral order’ doctrine.” Syllabus point 1, West Virginia Board of Education v.
Marple, 236 W. Va. 654, 783 S.E.2d 75 (2015).
2. “When a party . . . assigns as error a circuit court’s denial of a motion
to dismiss, the circuit court’s disposition of the motion to dismiss will be reviewed de
novo.” Syllabus point 4, in part, Ewing v. Board of Education of County of Summers, 202
W. Va. 228, 503 S.E.2d 541 (1998).
3. “‘In the absence of an insurance contract waiving the defense, the
doctrine of qualified or official immunity bars a claim of mere negligence against a State
agency not within the purview of the West Virginia Governmental Tort Claims and
Insurance Reform Act, W. Va. Code § 29-12A-1 et seq., and against an officer of that
department acting within the scope of his or her employment, with respect to the
discretionary judgments, decisions, and actions of the officer.’ Syl. Pt. 6, Clark v. Dunn,
195 W. Va. 272, 465 S.E.2d 374 (1995).” Syllabus point 7, West Virginia Regional Jail &
Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).
i
4. “To the extent that governmental acts or omissions which give rise to
a cause of action fall within the category of discretionary functions, a reviewing court must
determine whether the plaintiff has demonstrated that such acts or omissions are in
violation of clearly established statutory or constitutional rights or laws of which a
reasonable person would have known or are otherwise fraudulent, malicious, or oppressive
in accordance with State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992).
In [the] absence of such a showing, both the State and its officials or employees charged
with such acts or omissions are immune from liability.” Syllabus point 11, West Virginia
Regional Jail & Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751(2014).
ii
Jenkins, Justice:
Petitioners, the West Virginia Regional Jail and Correctional Facility
Authority (“WVRJCA”) and Joshua David Zombro (“Mr. Zombro”) (collectively
“Petitioners”), appeal the circuit court’s November 19, 2018 orders denying their
respective motions to dismiss Respondent’s, the Estate of Cody Lawrence Grove (“the
Estate”), amended complaint for failure to state a claim upon which relief can be granted.
On appeal, Petitioners contend that the circuit court erred in failing to apply a heightened
pleading standard for qualified immunity; failing to find both Petitioners are qualifiedly
immune; failing to find the WVRJCA is a state agency; and failing to dismiss the claim
against the WVRJCA for punitive damages. In contrast, the Estate asserts that the circuit
court correctly applied a notice pleading standard; neither Petitioner is protected from suit
by the qualified immunity doctrine under the facts of this case; and the issues of whether
the WVRJCA is a state agency and subject to punitive damages are irrelevant and not
properly before this Court. 1
Upon careful review of the briefs, the appendix record, the arguments of the
parties, and the applicable legal authority, we find that the circuit court erred by incorrectly
failing to apply the heightened pleading standard applicable to cases implicating qualified
immunity; failing to appropriately consider whether qualified immunity applied to shield
1
The Estate does concede, for the purposes of this appeal, that the WVRJCA
is a state agency and is not subject to punitive damages.
1
Petitioners from suit; failing to determine whether the WVRJCA is a state agency; and
failing to address punitive damages. Consequently, we reverse the November 19, 2018
orders of the circuit court and remand this case to the circuit court with instructions to
consider the allegations of the amended complaint pursuant to the heightened pleading
standard applicable to cases implicating qualified immunity; determine whether the claims
against Petitioners are barred by the doctrine of qualified immunity; and ascertain whether
punitive damages are applicable in this matter.
I.
FACTUAL AND PROCEDURAL HISTORY
This appeal arises from the suicide of Cody Lawrence Groves (“Mr.
Groves”) on December 8, 2015, during his incarceration at the Eastern Regional Jail
(“ERJ”), which is operated by the WVRJCA. On December 7, 2017, the Estate filed a
complaint against the WVRJCA and Mr. Zombro, individually, and in his official capacity
as a former correctional officer of the WVRJCA. 2 The complaint alleges that, while he
was incarcerated at the ERJ, Mr. Groves was on suicide watch, medical watch, or some
other heightened watch and that the WVRJCA’s and/or Mr. Zombro’s failure to provide
Mr. Groves with a reasonably safe confinement facility caused Mr. Groves’ death.
Moreover, while the complaint is wholly devoid of the factual circumstances surrounding
We note that this proceeding was originally before the Honorable Judge
2
Debra McLaughlin.
2
Mr. Groves’ death, the Estate contended that there was “[a] failure of staff to intervene on
[Mr. Groves’] behalf” and that the WVRJCA negligently hired, trained, supervised,
employed, and retained Mr. Zombro. Based on these limited allegations, the Estate
asserted seven causes of action against the WVRJCA and/or Mr. Zombro: (1) deprivation
of constitutional rights, (2) negligent supervision, (3) negligent training and retention, (4)
negligent and intentional infliction of emotional distress, (5) general negligence, (6)
wrongful death, and (7) injunctive relief.
Subsequently, on January 15, 2018, Mr. Zombro moved to dismiss the
Estate’s complaint for failure to state a claim upon which relief could be granted. In
particular, Mr. Zombro argued that the complaint “contains no allegations of material facts
regarding acts or omissions by [Mr.] Zombro to support a cause of action against him.” He
further contended that the complaint was “riddled with conclusory allegations and legal
conclusions without any factual support[.]” Additionally, Mr. Zombro asserted that he was
entitled to complete dismissal of all claims based on qualified immunity. 3 Following Mr.
Zombro’s motion, the WVRJCA filed its own motion to dismiss the Estate’s complaint on
January 25, 2018. The WVRJCA moved to dismiss on numerous grounds, including lack
of subject matter jurisdiction, improper venue, and failure to state a claim upon which relief
could be granted. Specifically, the WVRJCA asserted that the claims were barred by
Mr. Zombro also argued for the dismissal of the Estate’s state constitutional
3
law claims and contended that he is immune from punitive damages.
3
sovereign immunity, qualified immunity, lack of pre-suit notice, lack of standing to enjoin,
and lack of sufficient facts to put it on notice of the claims asserted against it. In addition,
the WVRJCA claimed that it was not subject to punitive damages and also argued for the
dismissal of the Estate’s state constitutional law claims.
The Estate opposed the motions to dismiss and also moved for leave to
amend its original complaint to add PrimeCare Medical of West Virginia, Inc., as another
defendant. On April 12, 2018, the circuit court issued an order granting the WVRJCA’s
motion to dismiss. The circuit court noted that its standards of review included the
“heightened pleading standard,” because this was a matter involving qualified immunity
issues and the general West Virginia Rule of Civil Procedure 12(b)(6) standard of review.
While the circuit court acknowledged that the WVRJCA’s motion to dismiss raised
numerous grounds, it further recognized that the issues of sovereign immunity, pre-suit
notice to the State, and standing “are jurisdictional issues that must be decided prior to
evaluating the sufficiency of the [c]omplaint.” The circuit court found that “[d]espite [the
Estate’s] claim to the contrary, the [WVRJCA] is a state agency under the administration
of the West Virginia Department of Military Affairs and Public Safety. W. Va. Code § 5F-
2-1(i)(10)[.]” The circuit court further found that the Estate had “failed to plead that an
insurance policy of [the WVRJCA] covers any alleged damages, or that [the Estate] is only
seeking damages up to the limits of that policy.” Accordingly, the circuit court concluded
that the WVRJCA was “immune from suit pursuant to Section 35, Article VI of the West
Virginia Constitution.” Furthermore, the circuit court ruled that, as a state agency, the
4
WVRJCA was entitled to pre-suit notification pursuant to West Virginia Code section 55-
17-3 and that the Estate had failed to demonstrate any compliance with the statutory pre-
suit notice requirements. Therefore, the circuit court found that it was without jurisdiction
and could not address the other grounds raised in the WVRJCA’s motion to dismiss. The
circuit court dismissed the complaint without prejudice as to the WVRJCA. On April 25,
2018, the circuit court granted the Estate’s motion to amend the complaint. 4
Following the circuit court’s April 25th order, the Estate filed an amended
complaint on May 9, 2018. 5 The amended complaint named not only the WVRJCA and
Mr. Zombro as defendants, but it also added an additional defendant, PrimeCare Medical
of West Virginia, Inc. (“PrimeCare”). The Estate’s amended complaint asserted the same
causes of action alleged in its initial complaint. Generally, the facts alleged in support of
the various causes of action in the amended complaint include that Mr. Grove “was on
‘suicide watch[,]’ [] ‘medical watch,’ and/or under a heightened level of monitoring and/or
supervision[,]” and that “[d]efendants knew or should have known Cody Grove was
addicted to heroin and a possible suicide risk.” The Estate further asserted that
4
It does not appear in the record we have before us that the circuit court ruled
on Mr. Zombro’s separately filed motion to dismiss prior to or after the complaint was
amended. During a subsequent hearing, Mr. Zombro suggested that he believed that the
motion was mooted by the court allowing the Estate to amend its original complaint.
Accordingly, it appears as though the case was continuing against Mr. Zombro at the time
the circuit court granted the Estate leave to file an amended complaint.
Shortly after the amended complaint was filed, this case was reassigned to
5
the Honorable Judge Laura Faircloth.
5
[d]efendants owed a duty . . . to provide a reasonably safe
confinement facility[;] a duty to properly hire, train, retain, and
supervise its correctional officers as well as ensure that inmates
were kept safe and secure, especially those under heightened
monitoring[;] and had a legal obligation to do so pursuant to 95
CSR 1-14.1 and 95 CSR 1-14.9.5, 7, 11 and 12.
Moreover, the Estate contended that the WVRJCA “otherwise negligently breached its
duty to properly hire, train and supervise [Mr. Zombro;] negligently retained [Mr. Zombro]
in its employ[;] and negligently failed to protect Plaintiff from a violation of his
constitutional, statutory and common law rights and protections.” The Estate further
alleged that Mr. Zombro “was to perform regular checks of Cody Grove’s welfare. Upon
information and belief, [Mr. Zombro] missed at least one (1) of those safety checks
allowing Cody Grove to hang and kill himself. This was a violation of law, regulation,
Cody Grove’s legal rights and Defendants’ own policies and procedures.”
Subsequently, Mr. Zombro moved to dismiss the amended complaint for
failure to state a claim upon which relief could be granted. In particular, Mr. Zombro
argued that he was qualifiedly immune from suit; that the Estate asserted unrecognized
causes of action; and, for those claims asserted against him in his official capacity, that the
Estate failed to provide pre-suit notice. The Estate filed a response in opposition asserting
that it had pleaded sufficient facts to place Mr. Zombro on notice of the claims, Mr. Zombro
did not have immunity, the violations of various constitutional rights are actionable, and
Mr. Zombro was not entitled to pre-suit notice.
6
The WVRJCA filed an answer to the Estate’s amended complaint and a
cross-claim against PrimeCare, asserting that it would be entitled to contribution and/or
indemnification from PrimeCare should a judgment be rendered in the Estate’s favor.
Contemporaneously, the WVRJCA also filed a motion to dismiss the Estate’s amended
complaint for failure to state a claim. 6 In its motion to dismiss, the WVRJCA again made
various arguments as to why the matter should be dismissed. The WVRJCA contended
that the Estate lacked standing to enjoin it because the Estate’s purported injuries could not
be redressed by an injunction; that it was qualifiedly immune from suit; that the Estate
failed to sufficiently plead facts to put it on notice of the Estate’s claims in counts I, IV,
and VII of the amended complaint; that it was not subject to punitive damages; and that a
stand-alone cause of action for violation of the State constitution is not a recognized claim. 7
6
The certificate of service on the motion to dismiss indicates that it was filed
on January 26, 2018. However, from a review of the record and the docket sheet it appears
that the motion was actually filed on the same day as the answer and cross-claim, i.e. June
26, 2018.
7
We note that the WVRJCA attached several medical records of Mr. Groves
to its motion to dismiss. The general rule is that “[o]nly matters contained in the pleading
can be considered on a motion to dismiss under Rule 12(b) R.C.P., and if matters outside
the pleading are presented to the court and are not excluded by it, the motion should be
treated as one for summary judgment . . . .” Syl. pt. 3, in part, Riffle v. C.J. Hughes Constr.
Co., 226 W. Va. 581, 703 S.E.2d 552 (2010) (quotations and citations omitted). However,
certain exceptions to this general rule have been recognized. Exhibits attached to a motion
to dismiss that are not acknowledged by the circuit court do not require the motion to be
converted to a summary judgment motion. West Virginia Rule of Civil Procedure 12(b)
allows a court to exclude matters outside the pleadings. Specifically, Rule 12(b)(7)
provides that
[i]f, on a motion asserting the defense numbered (6) to
dismiss for failure of the pleading to state a claim upon which
relief can be granted, matters outside the pleading are
7
The Estate filed a response in opposition asserting that it had pleaded sufficient facts to
place the WVRJCA on notice of the claims, it had standing to seek an injunction, the
WVRJCA did not have immunity, the WVRJCA is subject to punitive damages, and the
violations of various State constitutional rights are actionable. The WVRJCA filed a reply
on July 25, 2018.
At an August 27, 2018 hearing, without giving any significant opportunity to
the parties to argue the substance of the motions to dismiss, the circuit court informed the
parties that it intended to deny the motions to dismiss, stating that “I want to see what the
presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as
provided in Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent to such a
motion by Rule 56.
W. Va. R. Civ. P. 12(b)(7) (emphasis added). Accordingly, “[t]he mere fact that documents
are attached to a Rule 12(b)(6) motion to dismiss does not require converting the motion
to a Rule 56 motion for summary judgment.” Louis J. Palmer & Robin J. Davis, Litigation
Handbook § 12(b)[8][g], at 417 (5th ed. 2017). This is because courts deciding whether a
motion to dismiss should be converted to a motion for summary judgment “have broad
discretion in determining whether or not to accept materials beyond the pleadings.” Lowe
v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998). See also Palmer & Davis,
supra §12(b)[8][g], at 418 (observing that “as long as a court does not rely on extraneous
documents, even though the documents may have been read, a court is not required to
convert a Rule 12(b)(6) motion to a Rule 56 motion”). In the present matter, a clear reading
of the order denying the WVRJCA’s motion to dismiss demonstrates that the circuit court
did not rely on any of the medical record documents attached to the WVRJCA’s motion to
dismiss.
8
development of the evidence is before I make [sic] grant any motion to dismiss.” 8 In a
September 11, 2018 order, the circuit court acknowledged receipt of proposed orders
denying the WVRJCA’s and Mr. Zombro’s respective motions to dismiss prepared by the
Estate. The circuit court stated that it would “review these orders and modify them as
necessary.” Subsequently, the circuit court entered its separate orders denying the
WVRJCA’s and Mr. Zombro’s motions to dismiss on November 19, 2018. 9 In its order
denying the WVRJCA’s motion to dismiss, the circuit court recognized that the motion to
dismiss raised five grounds for dismissal, including that the WVRJCA is protected from
During the hearing, counsel for the WVRJCA asked the court whether it
8
intended to deny the entirety of the motions because the court had not addressed all of the
issues during the hearing. Specifically, the following exchange occurred:
Mr. Delligatti [Counsel for the WVRJCA]: I don’t think you
addressed all of the – I think that addressed the issue of
qualified immunity whether the claim was stated but there are
also issues about whether a state agency could be subject to
punitive damages, et cetra, I mean are you saying that –
The Court: It’s to all aspects.
PrimeCare also filed a motion to dismiss the Estate’s amended complaint
9
on a different issue, which the circuit court denied by a third separate order. PrimeCare
then filed a petition for a writ of prohibition with this Court. Finding that the Estate’s
failure to comply with the pre-suit notice requirements of the Medical Professional
Liability Act deprived the circuit court of subject matter jurisdiction, this Court determined
that the circuit court erred by failing to dismiss the Estate’s claims against PrimeCare.
Accordingly, we granted the writ of prohibition, vacated the circuit court’s order denying
PrimeCare’s motion to dismiss, and remanded the case for entry of an order dismissing the
Estate’s claims against PrimeCare. See generally State ex rel. PrimeCare Med. of W. Va.,
Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 (2019).
PrimeCare is not a party to this appeal and has not appeared before the Court
in this matter.
9
suit by qualified immunity and is not subject to punitive damages. In its order denying Mr.
Zombro’s motion to dismiss, the circuit court recognized that the motion to dismiss raised
three grounds for dismissal, including protection from suit by qualified immunity.
Regarding the standard of review, the circuit court found in both orders that the Estate’s
“burden . . . is a relatively light one.” (Citation omitted). Furthermore, the circuit court
concluded in both orders that the Estate “has set forth a sufficient basis to deny [the
WVRJCA’s and Zombro’s] Motion to Dismiss” and that the Estate “has set forth . . .
sufficient facts to put Defendants on notice of the nature of Plaintiff’s claims. The Plaintiff
has provided sufficient clarity so that the Defendants can understand the nature of
Plaintiff’s factual claims and legal theories of the action.” 10 The WVRJCA and Mr.
Zombro now appeal the circuit court’s respective orders denying their motions to dismiss.
II.
STANDARD OF REVIEW
The WVRJCA and Mr. Zombro ask this Court to review the circuit court’s
denial of their respective motions to dismiss pursuant to West Virginia Rule of Civil
Procedure 12(b)(6). 11 In Syllabus point 1 of West Virginia Board of Education v. Marple,
10
The circuit court also made findings relative to PrimeCare’s motion to
dismiss and its arguments concerning the lack of a screening certificate of merit, but those
findings are not recounted here because they do not concern issues germane to this appeal.
11
West Virginia Rule of Civil Procedure 12(b)(6) allows a defendant in a
civil action to file a motion to dismiss a claim against him/her for “failure to state a claim
upon which relief can be granted.”
10
236 W. Va. 654, 783 S.E.2d 75 (2015), we held: “A circuit court’s denial of a motion to
dismiss that is predicated on qualified immunity is an interlocutory ruling which is subject
to immediate appeal under the ‘collateral order’ doctrine.”
Having established that this appeal is properly before this Court, we turn to
the appropriate standard of review. We previously have held that “[w]hen a party . . .
assigns as error a circuit court’s denial of a motion to dismiss, the circuit court’s disposition
of the motion to dismiss will be reviewed de novo.” Syl. pt. 4, in part, Ewing v. Bd. of
Educ. of Cty. of Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998). Furthermore, “[f]or
purposes of the motion to dismiss, the complaint is construed in the light most favorable to
plaintiff [ ], and its allegations are to be taken as true.” Marple, 236 W. Va. at 660, 783
S.E.2d at 81 (quotations and citation omitted). “[D]ismissal for failure to state a claim is
only proper where it is clear that no relief could be granted under any set of facts that could
be proved consistent with the allegations in the complaint.” Id. (citation omitted).
However, a plaintiff’s complaint must, “at a minimum[,] . . . set forth sufficient information
to outline the elements of his [or her] claim,” and, “in civil actions where immunities are
implicated, the trial court must insist on heightened pleading by the plaintiff.” Id.
(quotations and citations omitted). With these standards in mind, we now turn to the
parties’ respective arguments.
11
III.
DISCUSSION
The WVRJCA raises four assignments of error in this appeal. First, the
WVRJCA asserts that the circuit court erred by applying a notice pleading standard rather
than a heightened pleading standard to a motion to dismiss based on qualified immunity.
Second, the WVRJCA contends that the circuit court erred by failing to find the WVRJCA
is qualifiedly immune. Third, the WVRJCA argues that the circuit court erred to the extent
that it found the WVRJCA is not a state agency. Fourth, the WVRJCA asserts that the
circuit court erred by not dismissing the claim against it for punitive damages.
Similarly, Mr. Zombro asserts two assignments of error on appeal. First, Mr.
Zombro argues that the circuit court erred by failing to use the framework for analysis
required by this Court in Marple, 236 W. Va. 654, 783 S.E.2d 75, when qualified immunity
is raised. Second, Mr. Zombro contends that the circuit court erred by denying his motion
to dismiss because he is entitled to qualified immunity from the claims raised in the Estate’s
First Amended Complaint due to the Estate failing to establish that he engaged in any act
or omission related to the suicide of the Estate’s decedent that established the violation of
a clearly established right. However, because we resolve this matter by finding that the
circuit court failed to apply the proper pleading standard and conduct any analysis as to
Petitioners’ claims of qualified immunity, we need not reach the remaining assignments of
error asserted by Petitioners.
12
A. Heightened Pleading Standard
Both the WVRJCA and Mr. Zombro argue that the circuit court incorrectly
applied a notice pleading standard rather than a heightened pleading standard. We agree.
Regarding qualified immunity and a “heightened pleading standard,” this Court previously
has stated:
We believe that in civil actions where immunities are
implicated, the trial court must insist on heightened pleading
by the plaintiff. See Schultea v. Wood, 47 F.3d 1427 (5th Cir.
1995) (en banc) (a § 1983 action); see generally Parkulo v.
West Virginia Board of Probation and Parole, [199 W. Va.
161, 483 S.E.2d 507] [(1996)]. To be sure, we recognize the
label “heightened pleading” for special pleading purposes for
constitutional or statutory torts involving improper motive has
always been a misnomer. A plaintiff is not required to
anticipate the defense of immunity in his complaint, Gomez v.
Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923-24, 64
L. Ed. 2d 572 (1980), and, under the West Virginia Rules of
Civil Procedure, the plaintiff is required to file a reply to a
defendant’s answer only if the circuit court exercises its
authority under Rule 7(a) to order one. We believe, in cases of
qualified or statutory immunity, court ordered replies and
motions for a more definite statement under Rule 12(e) can
speed the judicial process. Therefore, the trial court should first
demand that a plaintiff file “a short and plain statement of his
complaint, a [statement] that rests on more than conclusion[s]
alone.” Schultea v. Wood, 47 F.3d [1427,] [] 1433 [5th Cir.
1995]. Next, the court may, on its own discretion, insist that
the plaintiff file a reply tailored to an answer pleading the
defense of statutory or qualified immunity. The court’s
discretion not to order such a reply ought to be narrow; where
the defendant demonstrates that greater detail might assist an
early resolution of the dispute, the order to reply should be
made. Of course, if the individual circumstances of the case
indicate that the plaintiff has pleaded his or her best case, there
is no need to order more detailed pleadings. If the information
contained in the pleadings is sufficient to justify the case
proceeding further, the early motion to dismiss should be
denied.
13
Hutchison v. City of Huntington, 198 W. Va. 139, 149-50, 479 S.E.2d 649, 659-60 (1996)
(emphasis added). Accord Portee v. City of Mount Hope, No. 17-0546, 2018 WL 3203157,
at *2 (W. Va. June 29, 2018) (memorandum decision) (“‘[I]n civil actions where
immunities are implicated, the trial court must insist on heightened pleading by the
plaintiff.’ Hutchison, 198 W. Va. at 149, 479 S.E.2d at 659.’”); W. Va. Dep’t of Educ. v.
McGraw, 239 W. Va. 192, 196 n.5, 800 S.E.2d 230, 234 n.5 (2017) (“In Hutchison v. City
of Huntington, 198 W. Va. 139, 149-50, 479 S.E.2d 649, 659-60 (1996), we stated that
when a defendant’s answer pleads the defense of governmental immunity, the circuit court
should order the plaintiff to file a reply tailored to the defendant’s immunity defense. . . .
Ms. McGraw’s original complaint provided scant detail of the basis of her constitutional
tort claim against the DOE, and consequently, she filed two amended complaints in the
course of the proceedings before the circuit court. Had the circuit court required Ms.
McGraw to file a reply to the DOE’s motion to dismiss pleading qualified immunity, it
might have assisted an early resolution to this dispute.”); W. Va. Bd. of Educ. v. Croaff,
No. 16-0532, 2017 WL 2172009, at *3 (W. Va. May 17, 2017) (memorandum decision)
(“‘In civil actions where immunities are implicated, the trial court must insist on heightened
pleading by the plaintiff.’ Hutchison, 198 W. Va. at 149, 479 S.E.2d at 659.”); W. Va. Bd.
of Educ. v. Marple, 236 W. Va. 654, 60, 783 S.E.2d 75, 81 (2015) (“Furthermore, ‘in civil
actions where immunities are implicated, the trial court must insist on heightened pleading
by the plaintiff.’ Hutchison, 198 W. Va. at 149, 479 S.E.2d at 659.”); Marcus v. Holley,
217 W. Va. 508, 517, 618 S.E.2d 517, 526 (2005) (“In Hutchison v. City of Huntington,
14
198 W. Va. 139, 479 S.E.2d 649 (1996), this Court emphasized the enhanced burden upon
a plaintiff in certain types of cases, explaining that ‘in civil actions where immunities are
implicated, the trial court must insist on heightened pleading by the plaintiff.’ 198 W. Va.
at 149, 479 S.E.2d at 659.”). Accordingly, it is well-established that matters involving
qualified immunity, such as the case presently before us, require a type of “heightened
pleading” standard.
In the matter sub judice, both the WVRJCA and Mr. Zombro filed motions
to dismiss asserting various reasons for dismissal, including being protected from suit by
qualified immunity. However, the circuit court’s order makes absolutely no mention of a
“heightened pleading” standard with regard to the Petitioners’ qualified immunity claims. 12
Instead, the circuit court, through its respective orders, merely states that the Estate
has set forth in its First Amended Complaint sufficient facts to
put [the WVRJCA and Mr. Zombro] on notice of the nature of
[the Estate’s] claims. The [Estate] has provided sufficient
clarity so that [the WVRJCA and Mr. Zombro] can understand
the nature of [the Estate’s] factual claims and legal theories of
the action.
(Emphasis added). From this language, it is clear that the circuit court applied the notice
pleading standard applicable to civil actions, generally, and not the heightened pleading
standard required in cases involving qualified immunity. Accordingly, we find that the
12
On the other hand, the circuit court’s order, authored by the original circuit
court judge assigned to the matter, on the first motion to dismiss filed by the WVRJCA did
apply a heightened pleading standard.
15
circuit court erred by failing to apply the heightened pleading standard in this particular
matter and reverse its ruling in this regard.
B. Failure to Conduct Qualified Immunity Analysis
Petitioners also claim that the circuit court failed to conduct a proper
qualified immunity analysis. As this Court explained in Hutchison, “[t]he very heart of the
[qualified] immunity defense is that it spares the defendant from having to go forward with
an inquiry into the merits of the case.” Id. at 148, 479 S.E.2d at 658. We also have
recognized that
a ruling on qualified immunity should be made early in the
proceedings so that the expense of trial is avoided where the
defense is dispositive. First and foremost, qualified immunity
is an entitlement not to stand trial, not merely a defense from
liability. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct.
2806, 86 L. Ed. 2d 411 (1985) (“The entitlement is an
immunity from suit rather than a mere defense to liability; and
like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial.”).
Maston v. Wagner, 236 W. Va. 488, 498, 781 S.E.2d 936, 946 (2015). Therefore, because
we consistently have acknowledged that qualified immunity is not just a defense, but rather
“an entitlement not to stand trial,” id., rulings on qualified immunity claims should be made
as early in the proceedings as possible. The uniqueness of qualified immunity and its
provision of total immunity from suit rather than just a defense is an important reason for
the aforementioned heightened pleading. See Xiao v. Rodriguez, No. A18-0646, 2019 WL
1983488, at *8 (Minn. Ct. App. May 6, 2019), review denied (Aug. 6, 2019), cert. denied
sub nom. Jun Xiao v. Regents of the Univ. of Minn., __ U.S. __, 140 S. Ct. 851, 205
16
L. Ed. 2d 464 (2020), reh’g denied, __ U.S. __, 140 S. Ct. 1553, 206 L. Ed. 2d 387 (2020)
(“The ‘allegations in a complaint may provide the basis for denying an immunity defense.’
Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 318 (Minn. App. 1997)
(emphasis in original), aff’d in part, 582 N.W.2d 216 (Minn. 1998). Cases implicating
immunity, however, are subject to a somewhat heightened pleading standard. See Elwood
v. Rice Cty., 423 N.W.2d 671, 676 (Minn. 1988). That is, plaintiffs ‘should supply in their
complaints or other supporting materials greater factual specificity and particularity than
is usually required.’ Id. (quotation omitted). And, immunity should be determined ‘at the
earliest possible stage to shield officers from disruptive effects of broad-ranging discovery
and effects of litigation.’ Id. at 675.”). Accordingly, Mr. Zombro argues that “[t]he
purpose of requiring ‘heightened pleading’ by a plaintiff permits a framework by which a
circuit court may engage in an analysis to determine whether a plaintiff has a sufficient
claim to overcome the qualified immunity.” We agree.
The issue of qualified immunity has come before this Court on countless
occasions. Consequently, we have developed a significant body of law in order to
determine whether a state agency, a state employee, or both are entitled to be protected
from suit by the doctrine of qualified immunity. The doctrine of qualified immunity
insulates a state actor from suit where the requisite conditions have been satisfied. See
generally W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751(2014). Therefore, a necessary prerequisite to a qualified immunity analysis is an initial
determination of whether the party seeking qualified immunity protection is a state actor.
17
This Court has established numerous steps that must be examined in order to find whether
qualified immunity protections apply in a particular case. For example, we have held that,
“[i]n the absence of an insurance contract waiving the
defense, the doctrine of qualified or official immunity bars a
claim of mere negligence against a State agency not within the
purview of the West Virginia Governmental Tort Claims and
Insurance Reform Act, W. Va. Code § 29-12A-1 et seq., and
against an officer of that department acting within the scope of
his or her employment, with respect to the discretionary
judgments, decisions, and actions of the officer.” Syl. Pt. 6,
Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).
Syl. pt. 7, A.B., 234 W. Va. 492, 766 S.E.2d 751. We further have held that,
[t]o the extent that governmental acts or omissions
which give rise to a cause of action fall within the category of
discretionary functions, a reviewing court must determine
whether the plaintiff has demonstrated that such acts or
omissions are in violation of clearly established statutory or
constitutional rights or laws of which a reasonable person
would have known or are otherwise fraudulent, malicious, or
oppressive in accordance with State v. Chase Securities, Inc.,
188 W. Va. 356, 424 S.E.2d 591 (1992). In [the] absence of
such a showing, both the State and its officials or employees
charged with such acts or omissions are immune from liability.
Syl. pt. 11, A.B., 234 W. Va. 492, 766 S.E.2d 751. As such, whenever a defendant raises
the issue of qualified immunity in a motion to dismiss, the circuit court must look to our
qualified immunity body of law and follow the steps this Court expressly has outlined to
make the determination of whether qualified immunity applies under the specific
circumstances of that particular case. Specifically, these steps include whether: (1) a state
agency or employee is involved; (2) there is an insurance contract waiving the defense of
qualified immunity; (3) the West Virginia Governmental Tort Claims and Insurance
Reform Act, W. Va. Code § 29-12A-1 et seq. would apply; (4) the matter involves
18
discretionary judgments, decisions, and/or actions; (5) the acts or omissions are in violation
of clearly established statutory or constitutional rights or laws of which a reasonable person
would have known or are otherwise fraudulent, malicious, or oppressive; and (6) the State
employee was acting within his/her scope of employment. See generally A.B., 234 W. Va.
492, 766 S.E.2d 751.
In the matter now before us, as stated above, both the WVRJCA and Mr.
Zombro filed motions to dismiss asserting that each is protected from suit by the doctrine
of qualified immunity. Accordingly, the circuit court was required to engage in an
examination of the amended complaint, using the requisite heightened pleading standard,
to determine whether the Estate sufficiently alleged the WVRJCA and/or Mr. Zombro had
committed discretionary governmental acts or omissions in violation of clearly established
statutory or constitutional rights or laws of which a reasonable person would have known
or whether they had engaged in conduct that was otherwise fraudulent, malicious, or
oppressive. However, as evidenced by its final orders, the circuit court failed to undertake
such an analysis.
Instead, as discussed above, the circuit court simply found the Estate “has set
forth in its First Amended Complaint sufficient facts to put [the WVRJCA and Mr.
Zombro] on notice of the nature of [the Estate’s] claims.” The orders are devoid of any
factual findings other than (1) that Mr. Groves’ suicide occurred on December 8, 2015,
while in the custody of the WVRJCA and under the direct supervision of Mr. Zombro and
19
(2) a listing of all the reasons upon which Petitioners based their respective motions to
dismiss. There is absolutely no examination or analysis of our well-established qualified
immunity framework. 13 At no point, during either the hearing or in the circuit court’s
orders, did the circuit court examine whether the Petitioners were state actors 14 or that the
alleged acts or omissions of Petitioners were discretionary functions. Neither did the
circuit court even attempt to identify a clearly established statutory or constitutional right
or law of which a reasonable person would have known. Furthermore, the circuit court did
not consider whether any alleged conduct by the WVRJCA or Mr. Zombro, if taken as true,
evidences an intent by either or both Petitioners to violate a clearly established statutory or
constitutional right or whether such actions or inactions otherwise could be found to be
13
The circuit court’s respective orders also contained certain factual
inaccuracies. Specifically, the orders identify Mr. Zombro as an employee of PrimeCare
rather than an employee of the WVRJCA. Furthermore, the circuit court orders discuss an
issue relating to PrimeCare which has no bearing on the issues in the subject motions to
dismiss.
14
In rendering its decision on the WVRJCA’s motion to dismiss the initial
complaint, below, the circuit court specifically stated that the WVRJCA is a state agency
and that ruling was not challenged. Furthermore, the Estate has now conceded the
WVRJCA’s state agency status. Therefore, the circuit court’s ruling in this regard has
become the law of the case and is not amenable to further challenge in the case sub judice.
State ex rel. TermNet Merch. Servs., Inc. v. Jordan, 217 W. Va. 696, 702 n.14, 619 S.E.2d
209, 215 n.14 (2005) (“The law of the case doctrine provides that a prior decision in a case
is binding upon subsequent stages of litigation between the parties in order to promote
finality.”). However, the circuit court did not make a definitive determination as to whether
Mr. Zombro was a state employee during the underlying proceedings. Therefore, as part
of its instructions on remand, the circuit court should consider whether Mr. Zombro was a
state employee during the relevant time period before it applies the additional analysis to
determine whether Mr. Zombro, himself, can claim qualified immunity from suit.
20
fraudulent, malicious, or oppressive. 15 Therefore, in addition to its previously recognized
error in failing to apply the correct heightened pleading standard in this matter where the
doctrine of qualified immunity has been implicated, the circuit court further erred by failing
to conduct any semblance of an analysis regarding qualified immunity.16 As such, this
failure, also, is grounds for reversal of the circuit court’s orders and requires proceedings
on remand to thoroughly consider Petitioners’ claims of qualified immunity. 17
15
Moreover, the Estate submitted a proposed order, to which both the
WVRJCA and Mr. Zombro objected, but which, interestingly, undertook a qualified
immunity analysis. However, the circuit court did not adopt in full or even in part any of
that portion of the proposed order. Instead, as discussed above, the circuit court failed to
engage in any qualified immunity analysis whatsoever.
16
Additionally, the WVRJCA urges this Court to adopt the federal
plausibility pleading standard as set forth in the cases of Bell Atlantic Corp. v Twombly,
550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S.
662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). However, we repeatedly have declined to
adopt this standard, and we again decline to do so in the case sub judice. See, e.g., Hoover
v. Moran, 222 W. Va. 112, 116 n.3, 662 S.E.2d 711, 715 n.3 (2008) (per curiam); Highmark
W. a., Inc. v. Jamie, 221 W. Va. 487, 491 n.4, 655 S.E.2d 509, 513 n.4 (2007) (per curiam).
17
As discussed herein, when undertaking the qualified immunity analysis,
the circuit court also must necessarily make a finding as to whether state actors are
involved. Accordingly, we remind the circuit court if it finds that a government agency as
defined in West Virginia Code section 55-17-2(2) (eff. 2002) has been named as a
defendant in this case, it must then consider whether an award of punitive damages is
permitted in light of the prohibition of West Virginia Code section 55-17-4(3) (eff. 2002)
directing that “[n]o government agency may be ordered to pay punitive damages in any
action.”
21
IV.
CONCLUSION
For the reasons set forth above, the November 19, 2018 orders of the Circuit
Court of Berkeley County are reversed, and this case is remanded with instructions to
appropriately consider the heightened pleading standard applicable to cases implicating
qualified immunity, whether punitive damages are applicable in this matter, and
appropriate consideration of whether the case is barred by the doctrine of qualified
immunity.
Reversed and Remanded with Instructions.
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