The opinion
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
JULIAN LEE GREEN,
July 30, 2024
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Plaintiff Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 23-ICA-374 (Cir. Ct. Ohio Cnty. Case No. CC-35-2023-C-AP-3)
CHRISTOPHER HOOD, Assistant Ohio
County Prosecuting Attorney,
CHIEF SHAWN SCHWERTFEGER,
OFFICER MITCHELL, and
OFFICER MILLER,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioner Julian Lee Green appeals the June 15, 2023, order of the Circuit Court of
Ohio County which granted Respondents’ motion for summary judgment. Respondents
timely filed a response in support of the circuit court’s order.1 Mr. Green did not file a
reply.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the circuit court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.
This matter stems from an incident that occurred on August 11, 2021, that resulted
in Mr. Green being criminally charged with disorderly conduct. On October 25, 2021, the
criminal charge was dismissed. On December 5, 2022, Mr. Green filed his underlying civil
complaint in the Magistrate Court of Ohio County. In his handwritten complaint, Mr. Green
alleges:
On or about 8/11/2021 these defendants did violate my Constitutional Rights.
Malicious prosecution, Retaliation, violating the law and there [sic] own
policies. Causing the Plaintiff emotional and mental harm. Intentional
Infliction of Emotional Distress. $10,000.00 in damages from the illegal
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Mr. Green is self-represented. Respondents are represented by Thomas E. Buck,
Esq.
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actions of these Defendants. Violating the 14th Amendment to “Equal
Protection of Laws.”
On December 21, 2022, Respondent Christopher Hood filed a motion for a more
definite statement or in the alternative motion to dismiss for failure to state a claim. On
January 6, 2023, Respondents Chief Schwertfeger, Officer Mitchell, and Officer Miller
(“Police Respondents”) filed their motion to dismiss for failure to state a claim and for lack
of subject matter jurisdiction. On January 9, 2023, the magistrate court granted the
Respondents’ motions to dismiss on the basis that the complaint failed to state a claim, the
court lacked jurisdiction over punitive damages, and governmental immunities.
Mr. Green then appealed to circuit court. On February 17, 2023, Mr. Hood and the
Police Respondents separately moved to dismiss in circuit court. On February 27, 2023,
Mr. Green filed his motion for an in-person hearing in which he asks for a chance to present
legal argument and evidence in support of his claims. The motion does not specifically
state what legal arguments or evidence Mr. Green wished to put forth and does not
specifically respond or dispute the arguments made by the Respondents in their motions to
dismiss. Further, Mr. Green did not attach any affidavits, transcripts, or other exhibits to
the motion.
On April 12, 2023, Mr. Hood moved the circuit court for an order imposing
reasonable limitations on Mr. Green’s ability to file civil actions on the basis that he had
filed more than thirty suits in State and Federal courts.2
On May 18, 2023, Mr. Hood and the Police Respondents separately moved for
summary judgment. It does not appear that Mr. Green responded to the motions for
summary judgment.
On June 15, 2023, the circuit court entered an order granting Respondents’ motions
for summary judgment. In that order, the circuit court held that Mr. Green did not allege
that the Respondents knowingly violated any clearly established law or otherwise acted
maliciously and therefore were entitled to qualified immunity; Mr. Hood was entitled to
prosecutorial immunity; Mr. Hood was entitled to statutory immunity; Mr. Green’s
complaint violated § 29-12A-6(d) (1986); the police Respondents were statutorily immune;
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Indeed, Mr. Green is no stranger to this Court. This Court has previously affirmed
the grant of summary judgment of Mr. Green’s claims in Green v. McFarland, No. 23-
ICA-121, 2024 WL 493586 (W. Va. Ct. App. Feb. 8, 2024) (memorandum decision) and
affirmed the dismissal of his claims in Green v. Schaffer, No. 23-ICA-181, 2024 WL
1256375 (W. Va. Ct. App. Mar. 25, 2024) (memorandum decision). Furthermore, in
addition to the current matter before the Court, Mr. Green has two additional appeals that
are pending before the Court in Case No. 23-ICA-301 and Case No. 23-ICA-310.
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the Public Duty Doctrine barred Mr. Green’s claims; and supervisor liability could not
attach to Chief Schwertfeger. It is from this order that Mr. Green appeals.
It is well established in West Virginia that “[a] circuit court’s entry of summary
judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 190, 451
S.E.2d 755, 756 (1994). In conducting our de novo review, we apply the same standard for
granting summary judgment that is applied by the circuit court. Under that standard,
[s]ummary judgment is appropriate where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, such as where
the nonmoving party has failed to make a sufficient showing on an essential
element of the case that it has the burden to prove.
Id. at 190, 451 S.E.2d at 756, syl. pt. 4.
On appeal, Mr. Green asserts that the circuit court erred by “refusing to hold a
hearing to look at evidence.” We disagree. In Miller v. Hatton, 184 W. Va. 765, 769, 403
S.E.2d 782, 786 (1991), the Supreme Court of Appeals of West Virginia concluded that
the appellants’ failure “to introduce specific evidence in opposition to ... [the movant’s]
motion for summary judgment undermines their claim that summary judgment was
improperly granted.” Here, Mr. Green failed to respond to the motions for summary
judgment, failed to introduce, or even allege, specific evidence in opposition to
Respondents’ motions for summary judgment, and on appeal, Mr. Green does not assert
that the circuit court erred in concluding that his claims were barred by the immunity
defenses asserted by the Respondents, the public duty doctrine, or that his complaint
violates West Virginia Code § 29-12A-6(d). Accordingly, the circuit court did not err by
granting summary judgment.
Wherefore, based on the foregoing, the June 15, 2023, order of the Circuit Court of
Ohio County is affirmed.
Affirmed.
ISSUED: July 30, 2024
CONCURRED IN BY:
Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear
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