Administrator Larry Crawford, individually and in his official capacity, Captain Carl Aldridge, individually and in his official capacity, C.O. Paul Diamond, individually and in his official capacity, C.O. Don Vance, individually and in his official capacity, C.O. David Rodes, individually and in his official capacity, C.O. Joshua Scarberry, individually and in his official capacity, and The West Virginia Regional Jail and Correctional Facility Authority v. Michael A. McDonald ( 2023 )

STATE OF WEST VIRGINIA FILED
SUPREME COURT OF APPEALS March 31, 2023
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Administrator Larry Crawford, individually and in his
official capacity, Captain Carl Aldridge, individually and in his
official capacity, C.O. Paul Diamond, individually and in his
official capacity, C.O. Don Vance, individually and in his
official capacity, C.O. David Rodes, individually and in his
official capacity, C.O. Joshua Scarberry, individually and in his
official capacity, and The West Virginia Regional Jail and
Correctional Facility Authority,
Defendants Below, Petitioners,
vs) No. 21-0732 (Cabell County 18-C-240)
Michael A. McDonald,
Plaintiff Below, Respondent
MEMORANDUM DECISION
Michael A. McDonald claims that correctional officers used excessive force against
him during his pre-trial detention at the Western Regional Jail in Barboursville in June
2016. Mr. McDonald states that he was sprayed in the face with Oleorespin Capsicum
foam without provocation and strapped to a restraint chair where he remained for twenty-
eight hours. In May 2018, Mr. McDonald brought a claim under 42 U.S.C. § 1983 for
excessive force and deliberate indifference as well as negligence and other common law
tort claims against Petitioners 1 —the West Virginia Regional Jail and Correctional Facility
Authority; supervisory employees Administrator Larry Crawford and Captain Carl
Adridge; and Correctional Officers Paul Diamond, Don Vance, David Rodes, and Joshua
Scarberry. Following discovery, Petitioners collectively moved for summary judgment on
qualified immunity grounds. The circuit court denied their motion on September 2, 2021,
and Petitioners now appeal.
Viewing all facts in favor of Mr. McDonald, we agree that there are disputed issues
of material fact regarding whether the correctional officers violated his clearly established
rights under the Fourteenth Amendment to the United States Constitution. A jury could
also find that the conduct in question was within the correctional officers’ scope of
Petitioners are represented by counsel Dwayne E. Cyrus and Kimberly M. Bandy.
1
Mr. McDonald is represented by counsel Kerry A. Nessel.
1
employment creating vicarious liability for their employer, the WVRJCFA. So, the
correctional officers and the WVRJCFA are not entitled to qualified immunity. But
because the claims against Administrator Crawford and Captain Aldridge lack legal and
factual support, they are entitled to qualified immunity. For these reasons, the order of the
circuit court is affirmed, in part, and reversed, in part, and this case is remanded for further
proceedings consistent with this memorandum decision. 2
I. Factual and Procedural History
Just after midnight on June 27, 2016, officers with the Putnam County Sheriff’s
Department arrested Mr. McDonald on an outstanding capias warrant and transported him
to the Western Regional Jail in Barboursville. Upon his arrival, officers escorted Mr.
McDonald to the booking area where he was processed. Mr. McDonald was a heavy user
of methamphetamines at the time and admitted to being emotionally unstable.
Night Shift Supervisor Corporal Paul Diamond suspected that Mr. McDonald was
high on drugs because “[h]e was kind of fidgety which made him a little bit unpredictable.”
Cpl. Diamond directed Correctional Officer David Rodes to place Mr. McDonald into a
holding cell a few feet away from the booking area, as there were multiple new arrestees
on the benches awaiting to be processed. Mr. McDonald, who was familiar with the
booking area of the jail, refused to go into the holding cell because he claims it was crowded
with inmates yelling that they had been placed there for days without being allowed to take
a shower or make a phone call. Mr. McDonald allegedly said, “I ain’t going in there,
Diamond. Look at all those people in there man. . . . you guys shouldn’t be treating people
this way.” Mr. McDonald claims he told the officers, “You guys should be getting people
back to population where they belong.”
Cpl. Diamond and other correctional officers continued to instruct Mr. McDonald
to enter the holding cell. Mr. McDonald refused their commands and dropped a foam
mattress that he was carrying. Cpl. Diamond held a can of OC foam up to Mr. McDonald’s
face and told Mr. McDonald that he was going to spray him if he did not comply. Mr.
McDonald still refused, and Cpl. Diamond deployed a half-second burst of OC foam to
Mr. McDonald’s face. Mr. McDonald dropped to the ground and Cpl. Diamond and
Correctional Officers Rodes and Joshua Scarberry placed him in restraints. A video
recording, lasting approximately two hours, captures the time Mr. McDonald entered
booking to the time Cpl. Diamond sprayed him with OC foam. This video is part of the
record.
2
This case meets the “limited circumstances” requirement of Rule 21(d) of the West
Virginia Rules of Appellate Procedure and is appropriate for a memorandum decision.
2
While Cpl. Diamond viewed Mr. McDonald’s refusal to comply with his direction
as a possible threat to officer safety, he conceded that the officers could have placed their
hands on Mr. McDonald and escorted him into the holding cell as an alternative to spraying
his face with OC foam. Cpl. Diamond testified that he and the other officers were
performing duties within the scope of their employment when they used force against Mr.
McDonald.
After Mr. McDonald was placed in restraints, several correctional officers escorted
him to the shower area and washed his face with cool water to remove the OC foam. After
a nurse checked Mr. McDonald, he was escorted to an outside recreation yard to
decontaminate with fresh air.
Mr. McDonald behaved erratically while in the recreation yard. He explained that
some of the OC foam had not completely washed off, that it ran down his body onto his
genital area causing extreme burning pain, and he felt like he was “on fire.” Mr. McDonald,
who was still handcuffed behind his back, contends that he tried to air out his genitals to
relieve the burning pain, and his pants and underwear fell to his ankles. According to Cpl.
Diamond, Mr. McDonald exposed his genitals, made lewd hand gestures, and fondled his
rectal area with his hands. Mr. McDonald banged his head on the door to the recreation
yard repeatedly to get the attention of the correctional officers.
Cpl. Diamond decided to place Mr. McDonald in a restraint chair; he claimed he
reached this decision to prevent Mr. McDonald from harming himself. Mr. McDonald was
initially placed in the restraint chair at 1:55 a.m. on June 27 by Cpl. Diamond and Officer
Rodes. Officer Don Vance used a handheld video camera to document Mr. McDonald’s
placement in the restraint chair and transport to an interview room, but WVRJCFA did not
produce this video during discovery. Throughout his time in the restraint chair, a watch
log of Mr. McDonald’s behavior and activities indicates that corrections staff regularly
monitored Mr. McDonald. 3 He remained in the restraint chair for several shifts—nearly
twenty-eight hours.
Mr. McDonald admits that when in the restraint chair, he was disruptive at times
and felt like he was fighting off evil spirits because of methamphetamine. The watch log
corroborates Mr. McDonald’s account and reveals that, at times, he yelled and sang. But
other watch log accounts indicated Mr. McDonald was sleeping, calm, relaxed, and talking.
The watch log indicates that corrections staff freed Mr. McDonald’s legs and arms at times
so he could stretch and that they provided him with food, water, and bathroom breaks. But
some of the notations made in the watch log provide little insight into Mr. McDonald’s
behavior to explain corrections staff’s extended use of the restraint chair. Several notations
3
In addition to the jail’s watch log, records from Prime Care Medical, the healthcare
provider at the jail, indicate that healthcare professionals checked on Mr. McDonald more
than thirty times while he was in the restraint chair.
3
document Mr. McDonald as being “in chair” or “talking & breathing.” Mr. McDonald’s
deposition testimony contradicts some of the entries in the watch log. For instance, Mr.
McDonald claims that he never refused a food tray even though the watch log says so. He
states that the correctional officers teased him with food trays and sat there “laughing at
me.” Mr. McDonald denies that he “threatened to kill officer” even though that entry exists
in the watch log. Mr. McDonald also claims that he had to beg for bathroom breaks and
that they were never offered to him.
Hours before he was released from the restraint chair, correctional staff documented
Mr. McDonald as being “calm, sitting relaxed in chair.” The watch log indicates that Cpl.
Diamond finally removed Mr. McDonald from the restraint chair at 5:15 a.m. on June 28.
Cpl. Diamond testified that he could not recall an inmate being in the restraint chair for
anywhere near that length of time. In fact, he could not recall an inmate being in the
restraint chair for more than ten hours.
At the time of these events, Larry Crawford was the Administrator at the Western
Regional Jail, and Carl Aldridge was its Chief Correctional Officer. There is no evidence
that Administrator Crawford was present during the events in question or that he played
any role in these events. Likewise, Captain Aldridge was not on duty on the night in
question. Correctional Officers Vance, Rodes, and Scarberry were present during portions
of the above events.
In May 2018, Mr. McDonald filed this civil action alleging violation of his
constitutional rights as well as a variety of common law torts against Petitioners. In his
amended complaint, Mr. McDonald asserts a 42 U.S.C. § 1983 claim for excessive force
and deliberate indifference to his safety against the individual defendants, and a variety of
intentional torts and various claims of negligence against the individual defendants and the
WVRJCA. In particular, Mr. McDonald alleges that the supervisory defendants and the
WVRJCA were negligent in their training and supervision of the correctional officers. 4 In
the amended complaint’s final count, Mr. McDonald also asserts a claim for “Respondent
[sic] Superior, Law of Agency.”
After discovery concluded, Petitioners filed a motion for summary judgment
asserting qualified immunity. They stated that the evidence did not support a claim for
excessive force and that Mr. McDonald failed to produce any evidence to prove his
allegations that his constitutional rights were violated or that the defendants acted in a
4
During the pendency of the case, Mr. McDonald voluntarily dismissed his claim
against the WVRJCFA for negligent hiring and retention. And although not expressly
dismissed, Mr. McDonald submitted no evidence or argument in the pleadings below in
support of his claim of a civil conspiracy involving the alleged cover-up of excessive force
against jail inmates.
4
fraudulent, malicious, or otherwise oppressive manner. Petitioners claimed that the use of
force was reasonable considering Mr. McDonald’s behavior and that the WVRJCFA, and
supervisors Crawford and Aldridge cannot be held vicariously liable under these facts.
In response, Mr. McDonald stated that the video evidence clearly showed that there
were other options available besides spraying OC foam directly into his eyes. He stated
that the video shows a docile inmate who had his hands down to his side when sprayed,
and that the officers could have simply placed their hands on his wrists and escorted him
into the holding cell. Mr. McDonald claimed that the most egregious acts of cruel and
unusual punishment concern the extended use of the restraint chair. Mr. McDonald
submitted a document that he claims is a printout from the chair’s manufacturer’s website,
which states “Detainees should not be left in the SureGuard Safety Restraint Chair for more
than two hours. The SureGuard Safety Restraint Chair should never be used as a means
of punishment.” 5 Mr. McDonald also noted that a watch log entry states that “all
interactions with sprayed inmate was [sic] recorded” but this video evidence was not
supplied during the discovery phase. Mr. McDonald claimed that he was the victim of
excessive force at the hands of the individual defendants and that the WVRJCFA should
not be afforded qualified immunity because the acts and omissions of its employees were
fraudulent, malicious, and oppressive.
In an order dated September 2, 2021, the circuit court refused to afford Petitioners
qualified immunity and denied their motion for summary judgment. It determined that
there were numerous disputes about the material facts underlying the immunity
determination that should be resolved by a jury.
II. Standard of Review
We are asked to determine whether the circuit court erred in denying summary
judgment to Petitioners based on their assertion of qualified immunity. “A motion for
summary judgment should be granted only when it is clear that there is no genuine issue
of fact to be tried and inquiry concerning the facts is not desirable to clarify the application
of the law.” 6 While the denial of summary judgment is generally not subject to appellate
review, we have carved out an exception, holding that “[a] circuit court’s denial of
summary judgment that is predicated on qualified immunity is an interlocutory ruling
which is subject to immediate appeal under the ‘collateral order’ doctrine.” 7 And “[t]his
5
(Emphasis in original). Mr. McDonald did not present testimony providing any
context for how this document is to be interpreted or how it applies.
6
Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of N.Y., 148 W. Va. 160, 133
S.E.2d 770 (1963).
7
Syl. Pt. 2, Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d 660 (2009).
5
Court reviews de novo the denial of a motion for summary judgment, where such a ruling
is properly reviewable by this Court.” 8 In conducting our de novo review, we “must draw
any permissible inference from the underlying facts in the light most favorable to the party
opposing the motion.” 9 The parties’ arguments will be considered against this plenary
standard.
III. Analysis
Petitioners argue that they are entitled to qualified immunity as a matter of law on
all claims because Mr. McDonald has “alleged nothing more than a violation of abstract
rights.” Factually, they contend that Cpl. Diamond’s actions of spraying Mr. McDonald
with OC foam and the use of the restraint chair was reasonable considering the
circumstances and do not constitute excessive use of force. Petitioners criticize the circuit
court’s order for discussing them collectively without providing an analysis of the conduct
that would support a claim against them individually. 10 Mr. McDonald disagrees that
Petitioners are entitled to qualified immunity. He contends that triable issues of fact remain
for a jury to decide, including whether the supervisory officers and/or the WVRJCA were
directly and/or vicariously liable for the incidents of excessive force and deliberate
indifference.
To determine whether the State, its agencies, officials, and employees are entitled
to qualified immunity for discretionary functions, this Court has held:
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
8
Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 576 S.E.2d
807 (2002).
9
Painter v. Peavy, 192 W. Va. 189, 192, 451 S.E.2d 755, 758 (1994) (citations
omitted).
10
Petitioners also contend that the circuit court’s order contains several inaccurate
statements that are either contrary to or not factually supported by the record. For instance,
the order states that Mr. McDonald urinated and regurgitated on himself while in the
restraint chair but there is no evidence in the record to support that claim. While we agree
that the order contains certain unsupported factual statements and/or inaccuracies, it
contains sufficient detail to permit meaningful appellate review.
6
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
absence of such a showing, both the State and its officials or employees
charged with such acts or omissions are immune from liability.[11]
But when the plaintiff identifies a clearly established right which has been violated
by the acts or omissions of the State, its agencies, or its officials or employees, or
fraudulent, malicious, or oppressive acts committed by such officials or employees, then
the court must determine whether such acts or omissions were within the scope of the
public official or employee’s employment.
If the plaintiff identifies a clearly established right or
law which has been violated by the acts or omissions of the
State, its agencies, officials, or employees, or can otherwise
identify fraudulent, malicious, or oppressive acts committed by
such official or employee, the court must determine whether
such acts or omissions were within the scope of the public
official or employee’s duties, authority, and/or employment.
To the extent that such official or employee is determined to
have been acting outside of the scope of his duties, authority,
and/or employment, the State and/or its agencies are immune
from vicarious liability, but the public employee or official is
not entitled to immunity in accordance with State v. Chase
Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992) and its
progeny. If the public official or employee was acting within
the scope of his duties, authority, and/or employment, the State
and/or its agencies may be held liable for such acts or
omissions under the doctrine of respondeat superior along
with the public official or employee.[12]
So, if the correctional officers were acting within the scope of their employment or duties,
then the WVRJCFA may be held vicariously liable for those acts or omissions.
A. Correctional Officers
Petitioners argue that Cpl. Diamond and the other correctional officers are entitled
to qualified immunity in connection with Mr. McDonald’s claims of violation of his
constitutional rights as well as his tort claims because there is insufficient evidence that
Syl. Pt. 11, W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766
11
S.E.2d 751 (2014).
12
Id. at Syl. Pt. 12.
7
they violated any clearly established right. Although Petitioners frame their argument in
terms of whether Mr. McDonald has identified a clearly established right which they
violated, the thrust of their argument is that their actions were objectively reasonable under
these facts. They claim that Mr. McDonald was sprayed with OC foam for refusing to
enter the holding cell and placed in the restraint chair because he was behaving erratically.
Petitioners claim this use of force was objectively reasonable considering the
circumstances, and the continued use of the restraint chair for approximately twenty-eight
hours was reasonable in order to maintain order and control. Conversely, Mr. McDonald
maintains that the use of force was clearly excessive and in violation of his constitutional
rights.
Our case law makes clear this Court’s “approach to matters concerning immunity
historically has followed federal law due in large part to the need for a uniform standard
when, as in the case before us, public officers are sued in state court for violations of federal
civil rights pursuant to 42 U.S.C. § 1983.” 13 In Kingsley v. Hendrickson, 14 the United
States Supreme Court held that “a pretrial detainee must show only that the force . . . used
against him was objectively unreasonable.” 15 So, we proceed with the Fourteenth
Amendment violation inquiry of the qualified immunity analysis under Kingsley’s
objective unreasonableness standard.
Considerations such as the following may bear on the
reasonableness or unreasonableness of the force used: the
relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff’s injury; any
effort made by the officer to temper or to limit the amount of
force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff
was actively resisting.[16]
“In the context of excessive force cases, the constitutional standard—
reasonableness—is always an exceptionally fact-specific inquiry. Hence, there are two
13
City of Saint Albans v. Botkins, 228 W.Va. 393, 398, 719 S.E.2d 863, 868 (2011);
see also Robinson, 223 W.Va. at 834, 679 S.E.2d at 666 (citation omitted) (“federal law is
controlling when public officials are sued in state court for violations of federal rights under
42 U.S.C. § 1983”).
14
576 U.S. 389 (2015).
15
Id. at 396-97.
16
Id. at 397 (citation omitted).
8
ways to show a government official’s actions are unreasonable.” 17 First, a violation of a
constitutional right may be clearly established if the violation is so obvious that a
reasonable state actor would know that what he is doing violates the Constitution; and
second, if a closely analogous case establishes that the conduct is unconstitutional. 18
Mr. McDonald first contends that excessive force was used against him when he
was sprayed in the face with OC foam even though he was not acting aggressively. Pretrial
detainees are entitled to at least as much protection under the Fourteenth Amendment as
convicted prisoners receive under the Eighth Amendment. 19 And in Ballard v. Delgado,20
this Court recognized that the malicious use of OC foam spray against an inmate is a
violation of clearly established rights under the Eighth Amendment. 21 The more serious
allegation of excessive force in this case is Mr. McDonald’s claim that he was left in the
restraint chair for hours after he posed no apparent risk. It is clearly established that
continuing to hold an inmate in a restraint chair unnecessarily for an extended period of
time following an incident can give rise to a genuine issue of fact as to whether a
constitutional violation occurred. 22
Viewing the facts in the light most favorable to Mr. McDonald, as we must at the
summary judgment stage, there are genuine issues of material fact regarding his claim of
excessive force. 23 The same can be said about Mr. McDonald’s claim for deliberate
17
Maston v. Wagner, 236 W. Va. 488, 506, 781 S.E.2d 936, 954 (2015).
18
Id. (citing Siebert v. Severino, 256 F.3d 648, 654-55 (7th Cir.2001)).
Riggins v. Nevada, 504 U.S. 127, 135 (1992); City of Revere v. Mass. Gen. Hosp.,
19
463 U.S. 239, 244 (1983).
20
241 W. Va. 495, 826 S.E.2d 620 (2019).
21
Id. at 505, 826 S.E.2d at 630 (citing Iko v. Shreve, 535 F.3d 225, 235 (4th Cir.
2008) (“It is generally recognized that it is a violation of the Eighth Amendment for prison
officials to use mace, tear gas or other chemical agents in quantities greater than necessary
or for the sole purpose of infliction of pain.”); Greene v. Feaster, 733 F.App’x 80, 82 (4th
Cir. 2018) (“It has long been established that prison officials violate the Eighth Amendment
by using ‘mace, tear gas or other chemical agents in quantities greater than necessary or
for the sole purpose of infliction of pain.’”)).
22
See Williams v. Benjamin, 77 F.3d 756, 764 (4th Cir. 1996).
23
While Petitioners cite cases sanctioning the use of OC foam spray and restraint
chairs, these excessive force determinations are highly fact specific; sometimes the
determinative facts are so disputed that summary judgment is inappropriate. See, e.g.,
9
indifference to his medical needs. An inmate can bring suit under § 1983 for an Eighth
Amendment violation “whether the indifference is manifested by prison doctors in their
response to the prisoner’s needs or by prison guards in intentionally denying or delaying
access to medical care or intentionally interfering with the treatment once prescribed.” 24
Deliberate indifference requires a showing that the inmate had a sufficiently serious
medical need and that the defendant knew of and disregarded an excessive risk to the
inmate’s health or safety. 25 We express no view on the merits of this claim, or any other
claim that can proceed, but in drawing “any permissible inference from the underlying facts
in the light most favorable to the party opposing the motion[,]” 26 there are genuine issues
of material fact regarding the extent of Mr. McDonald’s injuries, as well as the officers’
actions and inactions toward him following the deployment of the OC spray, efforts at
decontamination, and confinement in the restraint chair for an extended length of time.
Petitioners also maintain that the circuit court should have assessed the correctional
officers’ actions individually. We disagree. An individualized analysis is not always
necessary at the summary judgment stage. 27 Because even if a single correctional officer’s
use of force was not excessive, “a law enforcement official who fails to intervene to prevent
another law enforcement official’s use of excessive force may be liable under § 1983.” 28
So, even if the other correctional officers did not use excessive force, a reasonable jury
could nonetheless find on this record that they violated Mr. McDonald’s clearly established
Jacoby v. Mack, 755 F. App’x 888, 897 (11th Cir. 2018) (“Viewing these facts in the light
most favorable to Mr. Jacoby and drawing all reasonable inferences in his favor, we
conclude that [correctional officers’] actions surrounding his pepper spraying—
specifically his inadequate decontamination and subsequent restraint while he was neither
combative nor disobeying orders—were objectively unreasonable and in violation of
Jacoby’s Fourteenth Amendment right to be free from excessive force.”) (footnote
omitted).
24
Estelle v. Gamble, 429 U.S. 97, 104-05, (1976) (footnotes omitted).
25
See Winkler v. Madison Cnty., 893 F.3d 877, 890-91 (6th Cir. 2018).
26
Painter, 192 W. Va. at 192, 451 S.E.2d at 758 (citations omitted).
27
See Est. of Booker v. Gomez, 745 F.3d 405, 422 (10th Cir. 2014) (stating separate
qualified immunity analyses for different defendants is not always necessary at the
summary judgment stage of excessive force cases).
28
Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996) (citations omitted).
10
rights by not taking steps to prevent Cpl. Diamond’s alleged excessive force. 29 For
instance, in Fogarty v. Gallegos, 30 the court affirmed the district court’s denial of qualified
immunity on a failure to intervene claim because the defendant was present during the
allegedly unconstitutional arrest, which lasted “between three and five minutes.” 31
B. The WVRJCFA
We now turn to whether Mr. McDonald has presented sufficient evidence to
establish a claim of negligence against the WVRJCFA directly, or for a jury to find that
the correctional officers were acting within the scope of their duties, authority, and
employment, such that the WVRJCFA may be held vicariously liable. Whether an act falls
within the scope of employment generally presents a question of fact. 32 But whether an
act falls within the scope of employment may become a question of law where “the facts
are undisputed and no conflicting inferences are possible.” 33 This Court has outlined
several factors to consider for purpose of determining whether an act is within the scope of
employment including, whether “the conduct 1) is of the kind [the employee] is employed
to perform; 2) occurs within the authorized time and space limits; 3) it is actuated, at least
in part, by a purpose to serve the master, and 4) if force is used, the use of force is not
unexpectable by the master.” 34 “Conduct of a servant is not within the scope of
employment if it is different in kind from that authorized, far beyond the authorized time
or space limits, or too little actuated by a purpose to serve the master.” 35
29
See Mascorro v. Billings, 656 F.3d 1198, 1204 n.5 (10th Cir. 2011) (“It is not
necessary that a police officer actually participate in the use of excessive force in order to
be held liable under section 1983. Rather, an officer who is present at the scene and who
fails to take reasonable steps to protect the victim of another officer’s use of excessive
force, can be held liable for his nonfeasance.”) (citations omitted).
30
523 F.3d 1147 (10th Cir. 2008).
31
Id. at 1164.
32
W.Va. Reg’l Jail v. A.B., 234 W. Va. at 509, 766 S.E.2d at 768.
Id. at 509, 766 S.E.2d at 768 (quoting Mary M. v. City of Los Angeles, 814 P.2d
331341, 1347 (Cal. 1991) (quotation omitted)).
34
Id. at 510, 766 S.E.2d at 769 (quoting Restatement (Second) of Agency § 228
(1958)) (italics omitted).
35
Id. (italics omitted).
11
Viewing all facts in favor of Mr. McDonald, a jury could reasonably find that the
correctional officers’ conduct in question was within the scope of their employment. Their
acts occurred while they were working for the WVRJCFA and trying to secure Mr.
McDonald. And Cpl. Diamond stated that he was acting in the scope of his employment
during the events in question. “[A]n employer may be liable for the conduct of an
employee, even if the specific conduct is unauthorized or contrary to express orders, so
long as the employee is acting within the general scope of his authority and for the benefit
of the employer.” 36 Since the correctional officers’ conduct appears motivated, at least in
part, by a purpose to serve the master, this case is unlike other cases that have found tortious
conduct not to be within the scope of employment. 37 For these reasons, the WVRJCFA
may be held vicariously liable for the actions of the correctional officers.
In addition to the vicarious liability of the WVRJCFA, Mr. McDonald also alleges
it was negligent in its training and supervision of the correctional officers. We recognize
that the doctrine of qualified immunity bars a claim of mere negligence against a State
agency like the WVRJCFA:
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.[38]
As we concluded in West Virginia Regional Jail Authority v. A.B., “the broad categories of
training [and] supervision . . . easily fall within the category of ‘discretionary’ government
functions.” 39 As discretionary functions, it is incumbent upon Mr. McDonald to identify a
clearly established law that the WVRJCFA violated in its training and/or supervision of
the correctional officers. Mr. McDonald cites to a now-repealed statute—West Virginia
Code § 31-20-9—as the “clearly established law” that the WVRJCFA violated as pertains
36
Travis v. Alcon Laboratories, Inc., 202 W. Va. 369, 381, 504 S.E.2d 419, 431
(1998).
37
See W. Va. Reg’l Jail v. A.B., 234 W. Va. at 509, 766 S.E.2d at 769 (finding that
sexual assault of an inmate was not within scope of employment).
38
Syl. Pt. 7, W. Va. Reg’l Jail v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (quoting Syl.
Pt. 6, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995)).
39
W. Va. Reg’l Jail v. A.B., 234 W. Va. at 514, 766 S.E.2d at 773.
12
to its training and supervision. He also alludes generally to the Code of State Rules, C.S.R.
§ 95-1-1, imposing standards for the operation and maintenance of jails. But like the
plaintiff in West Virginia Regional Jail Authority v. A.B., Mr. McDonald fails to identify
any specific violation of these regulations, aside from generally asserting that because of
the alleged excessive force he was deprived of a “safe environment” and that this was due
to negligent training and/or supervision. These generalities are inadequate to overcome the
WVRJCFA’s entitlement to qualified immunity from a claim of mere negligence. So, that
claim against the WVRJCA lacks legal and factual support, and summary judgment in its
favor should have been granted.
C. Administrator Crawford and Captain Aldridge
Petitioners also argue that the supervisory defendants, Administrator Crawford and
Captain Aldridge, are entitled to qualified immunity as a matter of law. Regarding the
claims against them for negligent supervision and training, Petitioners contend that Mr.
McDonald’s reliance on the now-repealed West Virginia Code § 31-20-9—that required
the WVRJCFA to set standards for staffing and training, inmate safety, and medical
services—does not rise to the level of “clearly established law” that the supervisory
defendants violated. As indicated above, we agree that Mr. McDonald has cast his net in
an excessively broad fashion. He “must make a ‘particularized showing’ that a ‘reasonable
official would understand that what he is doing violated that right’ or that ‘in the light of
preexisting law the unlawfulness’ of the action was ‘apparent.’” 40 As noted above, West
Virginia Code § 31-20-9 does not constitute a clearly established law for qualified
immunity purposes because it does not prescribe any specific behavior by the supervisory
defendants and does not clearly define any rights.
Although Mr. McDonald offered various policies and procedures of the WVRJCFA
below, he has not identified any conduct on the part of the supervisory defendants that
could be considered a violation of a clearly established law or right sufficient to overcome
qualified immunity as described in West Virginia Regional Jail v. A.B. In the same way,
Mr. McDonald has not provided a factual record that could present a triable issue of fact
regarding alleged negligent training or supervision, fraudulent, malicious, or oppressive
conduct by Administrator Crawford or Captain Aldridge. And in Robinson v. Pack, 41 this
Court recognized that supervising officers cannot be held civilly liable for the wrongful
conduct their subordinate officers:
40
Hutchison v. City of Huntington, 198 W. Va. 139, 149 n.11, 479 S.E.2d 649, 659
n.11 (1996) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
41
223 W. Va. 828, 679 S.E.2d 660.
13
Under the holding of Ashcroft v. Iqbal, [556] U.S. [662], 129 S. Ct.
1937, 173 L.Ed.2d 868 (2009), a supervising police officer may not be held
liable for the wrongful actions of his or her subordinate officers in connection
with an alleged civil rights violation because a supervising police officer is
only liable for his or her own conduct and not that of his/her subordinates.[42]
For these reasons, Administrator Crawford and Captain Aldridge are entitled to summary
judgment as a matter of law.
IV. Conclusion
For the reasons set out above, the order of the Circuit Court of Cabell County is
affirmed, in part, and reversed, in part, and this case is remanded for further proceedings
consistent with this memorandum decision.
Affirmed, in part, reversed,
in part, and remanded.
ISSUED: March 31, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
42
Id. at Syl. Pt. 5.
14