Hoback v. Cox

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

JENNIFER JENKINS HOBACK,

Plaintiff,

v. CIVIL ACTION NO. 3:19-0460

SHERRIE COX, in her individual capacity and

in her capacity as an employee of the State of West Virginia;

CHERYL WILLIAMS, in her individual capacity and

in her capacity as an employee of the State of West Virginia;

CRAIG RICHARDS, in his individual capacity and

in his capacity as an employee of the State of West Virginia;

TAMARA KUHN, in her individual capacity and

in her capacity as an employee of the State of West Virginia,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendant Sherrie Cox’s Motion to Dismiss Plaintiff’s

Complaint. ECF No. 26. Defendants Cheryl Williams, Craig Richards, and Tamara Kuhn filed a

Motion to Join Defendant Sherrie Cox’s Motion to Dismiss. ECF No. 33. Upon consideration, the

Court GRANTS Defendants Williams, Richards, and Kuhn’s motion, and for the following

reasons, the Court GRANTS, in part, and DENIES, in part, Defendant Cox’s motion.

I.

FACTUAL ALLEGATIONS

This action arises from problems related to Plaintiff Jennifer Jenkins Hoback’s

former employment as a Registered Nurse at Mildred Mitchell-Bateman Hospital ("MMBH"), a

state mental health hospital operated by West Virginia’s Department of Health and Human

Resources (WVDHHR). Plaintiff asserts that she worked with Defendant Cox for two or three

years before it was announced in November 2017 that Defendant Cox would be promoted to the

position of nurse manage over the Unit where Plaintiff worked. Plaintiff states it was common

knowledge that she and Defendant Cox “did not get along.” Compl. at ¶21, ECF No. 1. Following

the announcement, Plaintiff states she sent an anonymous letter to Defendant Richards, the Chief

Executive Officer at MMBH, about concerns she had with Defendant Cox’s promotion. Plaintiff

also states that several staff members requested and received transfers out of the Unit. The

WVDHHR’s Office of Equal Employment Opportunity (EEO) investigated the transfers and

allegations of bullying and racism made against Defendant Cox, which delayed her promotion

until March 2018. Plaintiff asserts that Defendant Cox believed that Plaintiff was the one who “had

filed the EEO Complaint against her.” Id. at ¶17.

In April 2018, Plaintiff states she spoke with Defendant Williams, the Director of

Nursing, about Defendant Cox. Plaintiff told Defendant Williams she believed Defendant Cox

would retaliate against her. Plaintiff asserts Defendant Cox learned about this conversation and,

on June 7, she “conducted a ‘coaching session’” with Plaintiff and wrote her up for an event that

occurred on April 20, nearly seven weeks earlier. Id. at ¶25. Plaintiff not only denies the allegations

in the “write-up,” but she also contends she was the only one “coached” over the event. Id. at ¶26,

27.

Eight days after being “coached,” Plaintiff states that, on June 15, she, Defendant

Cox, and three other staff members went to a psychiatric patient’s room to administer medication

to an individual who was combative. Plaintiff asserts the patient attacked her, causing them both

to fall. Ultimately, two other staff members were able to gain control, and the patient was

administered the medication. Plaintiff claims the incident lasted a few minutes and the patient was

uninjured. According to Plaintiff, after the medication was administered, all the staff left the room

at the same time.

Following the incident, Plaintiff alleges Defendant Cox retaliated against her and

falsely reported to Defendant Williams that Plaintiff verbally and physically abused the patient.

Defendant Williams met with Plaintiff later in the day on June 15 and informed her she was

suspended pending an investigation. According to Plaintiff, Defendant Williams also completed a

“Patient Complaint Form” that “was referred to administration for investigation.” Id. at ¶49.

Thereafter, investigations also were started by Teri Stone, an employee of Legal Aid of West

Virginia, Inc. (LAWV),1 the organization charged with investigating patient abuse and neglect

claims at MMBH, and the Board of Examiners for Registered Professional Nurses (WVBON).

According to Plaintiff, Ms. Stone and Jami Boykin, a Nurse Manager, concluded

the allegations were unsubstantiated on or about June 29. However, without further investigation,

Ms. Stone purportedly changed her mind and told Ms. Boykin on July 2 that she was revising the

report to reflect the charges were substantiated. Plaintiff states Ms. Boykin objected and refused

to sign the report. Plaintiff claims that a co-worker told her on July 13 that she had heard the case

against Plaintiff was closed and she was supposed to return to work but, when Defendant Cox

heard about it, “she found someone in Adult Protective Services (“APS”) to reopen the case

because she was trying to get [Plaintiff] fired.” Id. at ¶80.

1Ms. Stone and LAWV were named as Defendants in this action, but they were dismissed

by agreement on November 18, 2019. ECF No. 38.

On July 18, a predetermination conference was held with Defendant Kuhn, the

Human Resources Director. At the conference, Plaintiff was permitted to give her side of the story.

Thereafter, Defendant Kuhn and Defendant Richards met and decided to terminate Plaintiff. By

letter dated that same day, Plaintiff was notified “she was terminated for gross misconduct[.]” Id.

at ¶87.

Thereafter, Plaintiff filed a grievance with the West Virginia Public Employee

Grievance Board (WVPEGB). On March 7, 2019, the WVPEGB found “MMBH had failed to

prove by a preponderance of the evidence” the allegations of physical or verbal abuse. Id. at ¶92.

In the Order, Plaintiff was awarded backpay, with interest, and restoration of her annual leave, sick

leave, retirement, and tenure. MMBH also was directed to reinstate Plaintiff and remove all

reference of the incident from her personal file. MMBH did not appeal the decision. Additionally,

given this decision, the WVBON dismissed the complaint filed with it by Defendant Williams.

Plaintiff states she returned to work on or about April 29, 2019. However, due to

stress and the toxicity of the workplace, she resigned approximately one month later. Plaintiff

contends that she has yet to receive her backpay with interest as awarded to her by the WVPEGB.

In the present Complaint, Plaintiff alleges three counts against Defendants. In

Count One, she asserts a cause of action pursuant to 42 U.S.C. § 1983 against Defendants for

unreasonable and unlawful seizure under the Fourth Amendment. In Count Two, she alleges a

cause of action against Defendants for malicious prosecution and abuse of process. In Count Three,

she asserts a violation of West Virginia’s “Whistle-blower Law.” Defendant Cox argues all these

claims must be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for

failure to state a claim.

II.

STANDARD OF REVIEW

For a claim to survive a Rule 12(b)(6) challenge, the Court must look for

“plausibility” in the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). This

standard requires a plaintiff to set forth the “grounds” for an “entitle[ment] to relief” that is more

than mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.” Id. at 555 (internal quotation marks and citations omitted). Accepting the factual

allegations in the complaint as true (even when doubtful), the allegations “must be enough to raise

a right to relief above the speculative level . . . .” Id. (citations omitted). If the allegations in the

complaint, assuming their truth, do “not raise a claim of entitlement to relief, this basic deficiency

should . . . be exposed at the point of minimum expenditure of time and money by the parties and

the court.” Id. at 558 (internal quotation marks and citations omitted).

Although Rule 8 does not demand “detailed factual allegations,” a mere

“unadorned, the-defendant-unlawfully-harmed-me accusation” is insufficient. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). “To survive a motion

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility

exists when a claim contains “factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. (citation omitted). “Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

(citation omitted). Whether a plausible claim is stated in a complaint requires a court to conduct a

context-specific analysis, drawing upon the court’s own judicial experience and common sense.

Id. at 679. If the court finds from its analysis that “the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not

‘show[n]’-‘that the pleader is entitled to relief.’” Id. (quoting, in part, Fed. R. Civ. P. 8(a)(2)). The

Supreme Court further articulated that “a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than conclusions, are not entitled to the

assumption of truth. While legal conclusions can provide the framework of a complaint, they must

be supported by factual allegations.” Id.

III.

DISCUSSION

A.

Count One

Fourth Amendment Claim

In Count One, Plaintiff alleges that the false report and investigation made by

Defendants violated her Fourth Amendment right “to be free from unreasonable seizures[.]”

Compl. at ¶108.2 Specifically, the Fourteenth Amendment provides that a State may not deprive

“any person of life, liberty, or property without due process of law.” U.S. Const. Amend. XIV, § 1.

Plaintiff argues in her Response that Defendants’ actions deprived her of the property right she

had to continued public employment and to her back pay with interest. However, Defendant Cox

asserts Plaintiff’s employment is not a property right protected by the Fourth Amendment and her

claim for back pay and interest should be made against MMBH, not her.

2In this paragraph, Plaintiff asserts the Fourth Amendment protects against a seizure of her

“person.” Id. In her Response, Plaintiff states she made a mere drafting error and inadvertently

omitted the word “property.” As Plaintiff has made a Fourth Amendment claim and the Fourth

Amendment clearly protects against unlawful seizures of both a person and property, the Court

accepts Plaintiff’s representation without requiring her to amend the Complaint and will consider

the motion in terms of a seizure of her property.

In considering whether Plaintiff has a property interest protected by the Fourth

Amendment that is enforceable through § 1983, the Court must engage in a due process analysis.3

“Due process contains both substantive and procedural components. Procedural due process

prevents mistaken or unjust deprivation, while substantive due process prohibits certain actions

regardless of procedural fairness.” Snider Int'l Corp. v. Town of Forest Heights, 739 F.3d 140, 145

(4th Cir. 2014).

As to substantive due process, courts first must decide whether a property interest

constitutes a fundamental right “rooted in the traditions and conscience of our people.” Reno v.

Flores, 507 U.S. 292, 302-03 (1993) (internal quotation marks and citations omitted) (“Substantive

due process analysis must begin with a careful description of the asserted right.”). “To have a

property interest in a benefit, a person clearly must have more than an abstract desire for it. . . . He

must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 577 (1972). “Substantive due process is a far narrower concept than

procedural; it is an absolute check on certain government actions notwithstanding the fairness of

the procedures used to implement them.” Love v. Pepersack, 47 F.3d 120, 122 (4th Cir. 1995)

(internal quotation marks and citations omitted). In order “[f]or a substantive due process claim to

survive a Rule 12(b)(6) dismissal motion, it must allege governmental conduct that is so egregious,

so outrageous, that it may fairly be said to shock the contemporary conscience.” Logar v.

W. Virginia Univ. Bd. of Governors, No. 1:13-CV-145, 2013 WL 4501052, at *6 (N.D. W. Va.

3Section 1983 provides a statutory vehicle to address deprivations of constitutional rights

by any person acting under color of state law. Collins v. City of Harker Heights, TX, 503 U.S. 115,

120 (1992).

Aug. 21, 2013) (quoting Martin v. Town of Brattleboro, No. 2:07–cv–260, 2008 WL 4416283, at

*1 (D. Vt. September 24, 2008)). It is not enough that a defendant merely acted irrationally. Id.

In Slaughter v. Mayor and City Council of Baltimore, 682 F.3d 317 (4th Cir. 2012),

the Fourth Circuit Court of Appeals stated that, “[d]efining conduct that shocks the conscience

does not draw on any traditional standard of liability from tort law but rather refers, as a

constitutional construct of substantive due process to ‘conduct intended to injure in some way

unjustifiable by any government interest.’” 682 F.3d at 321 (quoting Cnty. of Sacramento v. Lewis,

523 U.S. 833, 849 (1998)). If the test is not met, the claim fails, and the court need not examine

“the nature of the asserted liberty interest.” Hawkins v. Freeman, 195 F.3d 732, 738 (4th Cir.

1999). On the other hand, if shocking conduct is shown, the court must consider the nature of

interest asserted and the level of protection that should be afforded. Id. (citing Lewis, 523 U.S. at

847, n. 8).

In this case, Plaintiff makes no arguments specifically addressing substantive due

process, nor does she explain how the conduct she has alleged rises to a constitutional level of a

fundamental property interest or how Defendant Cox’s conduct was so egregiousness or

outrageousness that “it may fairly be said to shock the contemporary conscience.” Lewis, 523 U.S.

at 847 n. 8. Although the Fourth Circuit has not definitely addressed whether public employment

is a fundamental property interest, the Court indicated in a footnote in Huang v. Board of

Governors of University of North Carolina, 902 F.2d 1134 (4th Cir. 1990), that, “[u]nlike rights

subject to procedural due process protection, which arise from sources other than the Constitution,

substantive due process rights arise solely from the Constitution” and, if an entitlement to

employment exists, it “is essentially a state law contract right, not a fundamental interest embodied

in the Constitution.” 902 F.2d at 1142 n.10 (citation omitted). Comparably, the court in Logar

observed that “‘most Circuit Courts of Appeal have declined to find that a right to continued public

employment is a fundamental property interest entitled to substantive due process protection.’”

2013 WL 4501052, at *6 (quoting Martin, 2008 WL 4416283, at *2 (collecting cases)). In light of

these cases, and the fact Plaintiff has not specifically argued that her allegations rise to the level of

a substantive due process claim, this Court declines to find a fundamental constitutional right exists

in this case.

However, even when a fundamental right to public employment does not exist, a

property interest in continued public employment still may be created by state laws, entitling an

employee to procedural due process protection. See Garraghty v. Com. of Va., Dep’t of Corr., 52

F.3d 1274, 1279 (4th Cir. 1995) (“Determination of whether one has a constitutionally protected

property right [in public employment] is a question of state law.” (citation omitted)). In Andrew v.

Clark, 561 F.3d 261 (4th Cir. 2009), the Fourth Circuit explained that “[a] government employee

‘has a protected property interest in continued public employment only if he can show a “legitimate

claim of entitlement” to his job under state or local law.’” 561 F.3d at 269 (Luy v. Baltimore Police

Dep’t, 326 F.Supp.2d 682, 689 (D. Md. 2004) (quoting Roth, 408 U.S. at 577–78)). A plaintiff

may make such a showing “when a State has adopted ‘rules and understandings, promulgated and

fostered by state officials’ promoting” “an entitlement to termination ‘for cause.’” Id. (quoting

Perry v. Sindermann, 408 U.S. 593, 602 (1972)).

Although not specifically mentioning “procedural due process” in her Complaint

or in her Response, Plaintiff’s arguments appear to fall squarely within this category of claims. To

prevail on a procedural due process claim, a plaintiff must demonstrate: “‘(1) a cognizable liberty

or property interest; (2) the deprivation of that interest by some form of state action; and (3) that

the procedures employed were constitutionally inadequate.’” Shirvinski v. U.S. Coast Guard, 673

F.3d 308, 314 (4th Cir. 2012) (quoting Kendall v. Balcerzak, 650 F.3d 515, 528 (4th Cir. 2011)).

Here, Plaintiff insists that the grievance process for state employees entitled her to

discharge for cause and created a property interest in her employment.4 To this point, the Court

agrees.5 The West Virginia Supreme Court has long held that a “‘State civil service classified

employee has a property interest arising out of the statutory entitlement to continued uninterrupted

employment.’” Syl. Pt. 2, Fraley v. Civil Serv. Comm’n, 356 S.E.2d 483 (W. Va. 1987) (quoting

Syl. Pt. 4, Waite v. Civil Service Comm’n, 241 S.E.2d 164 (W. Va. 1977)).6 Given this property

interest, the West Virginia Supreme Court has held that such employees have a procedural due

process right to some form of pre-termination hearing. Syl. Pt. 3, id. (quoting, in Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (holding if a property interest in public employment

exists, due process requires that an employee be given notice and an opportunity to be heard prior

to discharge). The Court explained that “[t]he essential due process requirements, notice and an

4The grievance procedures for civil services employees is set forth in West Virginia Code

§ 6C-2-1 et seq.

5Although not expressly stated in the Complaint, the Court assumes for purposes of this

motion that Plaintiff is a civil service employee as she pursued a grievance through the WVPEGB.

6Waite has been overruled on other grounds.

opportunity to respond, are met if the tenured civil service employee is given ‘oral or written notice

of the charges against him, an explanation of the employer’s evidence, and an opportunity to

present his side of the story’ prior to termination.” Id. at 486 (quoting Loudermill, 470 U.S. at 546).

Thus, Plaintiff has met the first step of the three-part test.

As to the second step, Plaintiff alleges she was deprived of the property right she

had in her employment when she was terminated from her position. Assuming, without deciding,

that this temporary deprivation of employment meets step two, Plaintiff claim still fails. Plaintiff

makes no argument whatsoever that the administrative procedures employed either before or after

her termination were constitutionally deficient at step three. Plaintiff admits in her Complaint that

she was given an opportunity to be heard at a predetermination conference. Additionally, following

her termination, Plaintiff successfully pursued her right to file a grievance with the WVPEGB. The

WVPEGB not only granted Plaintiff’s grievance, but it also awarded her reinstatement, backpay

with interest, and restoration of her benefits. Without any allegations that this process was

constitutionally flawed, Plaintiff has failed to state a plausible claim that her procedural due

process rights were violated.

To the extent Plaintiff further claims she has a property interest in her backpay,

neither Defendant Cox, nor any of the other Defendants named herein, are responsible to make

that payment as was ordered by the WVPEGB against MMBH. Although it is somewhat unclear

in the Complaint whether Plaintiff is attempting to collect the award she received through the

grievance process through this action, if she is, she cannot collect that judgment against the

Defendants she has named in this action. Therefore, the Court finds this action cannot serve as the

vehicle to enforce the decision of the WVPEGB.7

Accordingly, as Plaintiff did not have a substantive due process right to her public

employment, and she has not stated a plausible procedural due process claim, the Court

DISMISSES Count One as to all Defendants.

B.

Count Two

Malicious Prosecution/Abuse of Process

and

Count Three

Violation of West Virginia’s “Whistle-blower Law”

In Count Two, Plaintiff alleges a claim for malicious prosecution and abuse of

process and, in Count Three, she alleges a violation of West Virginia’s “Whistle-blower Law,”

West Virginia Code § 6C-1-1 et seq.8 Defendant Cox argues that Plaintiff’s whistleblowing claim

is barred by the 180-day statute of limitations found in West Virginia Code § 6C-1-4(a).9 In her

Response, Plaintiff concedes that she filed outside the statute of limitations. Therefore, the Court

GRANTS Defendant Cox’s motion to dismiss Count Three. Defendant Cox further argues that

7Defendant Cox also argues this Court is not the proper venue for enforcement pursuant to

West Virginia Code § 6C-2-5, which provides that the decision issued by “the administrative law

judge is final upon the parties and is enforceable in the circuit court of Kanawha County.” W. Va.

Code § 6C-2-5(a). As Plaintiff has not named MMBH as a defendant here, the Court finds it

unnecessary to address Defendant Cox’s venue argument.

8West Virginia Code § 6C-1-1 provides that “[t]his article shall be known, and may be

cited, as the ‘Whistle-blower Law.’” W. Va. Code § 6C-1-1.

9This section provides that “[a] person who alleges that he is a victim of a violation of this

article may bring a civil action in a court of competent jurisdiction for appropriate injunctive relief

or damages, or both, within one hundred eighty days after the occurrence of the alleged violation.”

W. Va. Code § 6C-1-4(a).

Plaintiff’s Malicious Prosecution and Abuse of Process claim is really a whistleblower claim and,

therefore, it also is barred by the 180-day statute of limitations. Plaintiff disagrees.

In Count Two, Plaintiff alleges, inter alia, that Defendants maliciously and

intentionally filed a false complaint of abuse and neglect against her and then maliciously and

intentionally failed to thoroughly investigate the complaint. These accusations also set in motion

investigations by LAWV and the WVBON. As a result, Plaintiff states she has “suffered emotional

distress, embarrassment, humiliation and damage to her character and reputation and has incurred

attorney’s fees and expenses[.]” Compl. at ¶120. In her statement of facts, which she incorporated

by reference in Count Two, Plaintiff alleges that Defendant Cox made the false report in retaliation

for Plaintiff’s prior complaints about her. Id. at ¶47. From this vantage, Defendant Cox argues

Plaintiff simply has alleged a whistleblower claim and it should be dismissed for being filed

outside the statute of limitations.

In support of her argument, Defendant Cox cites Broschart v. West Virginia

Department of Health and Human Resources, No. 11–1569, 2013 WL 2301777 (W. Va. May 24,

2013), an unpublished memorandum decision by the West Virginia Supreme Court. In Broshart,

a child services worker was terminated from her position and filed a complaint “for the tort of

outrage, constructive discharge, violations of the employee handbook or manual, and a

whistleblower claim.” 2013 WL 2301777, at *1. The plaintiff based each of her claims on the fact

she previously had reported “wrongdoing within the organization.” Id. The defendant moved to

dismiss all these claims because they were premised on the plaintiff “being punished for

whistleblowing activities” and the plaintiff had filed outside the 180-day statute of limitations. Id.

The circuit court granted the motion, and the plaintiff appealed. Without any explanation, the West

Virginia Court affirmed the lower court’s decision and held the plaintiff had “not shown that the

factual findings here were anything other than a whistleblower action, therefore the 180–day

statute of limitations applies.” Id. at *2.

Upon review, the Court finds Broschart does not control the present case. In

addition to being an unpublished memorandum decision with no analysis, Broschart did not

address the claims at issue here, that is, Plaintiff’s malicious prosecution and abuse of power

claims. In comparison, the Court recognizes that West Virginia’s Whistle-blower Law and

malicious prosecution serve different purposes and require different elements of proof. West

Virginia’s Whistle-blower Law protects a public employee from adverse employment decisions

such as discharge and retaliation when an “employee, acting on his own volition . . . makes a good

faith report . . . , verbally or in writing, to the employer or appropriate authority an instance of

wrongdoing[.]” W. Va. Code § 6C-1-3(a), in part.10 A “wrongdoing” is defined as “a violation

which is not of a merely technical or minimal nature of a federal or state statute or regulation, of a

political subdivision ordinance or regulation or of a code of conduct or ethics designed to protect

10In full, this section provides:

(a) No employer may discharge, threaten or otherwise discriminate

or retaliate against an employee by changing the employee's

compensation, terms, conditions, location or privileges of

employment because the employee, acting on his own volition, or a

person acting on behalf of or under the direction of the employee,

makes a good faith report or is about to report, verbally or in writing,

to the employer or appropriate authority an instance of wrongdoing

or waste.

W. Va. Code Ann. § 6C-1-3(a).

the interest of the public or the employer.” W. Va. Code § 6C-1-2(h). In Taylor v. West Virginia

Department of Health & Human Resources, 788 S.E.2d 295, 307 (W. Va. 2016), the West Virginia

Supreme Court explained that employment claims, such as those under the Whistle-blower Law,

West Virginia’s Human Rights Act, and retaliatory discharge claims under Harless v. First

National Bank in Fairmont, 246 S.E.2d 270 (W. Va. 1978), “all employ effectively the same

burden-shifting mechanism,” that is:

If the complainant is successful in creating [a] rebuttable

presumption of discrimination, the burden then shifts to the

respondent to offer some legitimate and nondiscriminatory reason

for the rejection. Should the respondent succeed in rebutting the

presumption of discrimination, then the complainant has the

opportunity to prove by a preponderance of the evidence that the

reasons offered by the respondent were merely a pretext for the

unlawful discrimination.

788 S.E.2d at 307 (quoting Syl. Pt. 3, Shepherdstown VFD v. W. Va. Human Rights Comm’n, 309

S.E.2d 342 (W. Va. 1983)); also citing W. Va. Code § 6C–1–4(b) and (c) (1988) (“requiring

employee to show by a preponderance that he or she qualifies as a statutory ‘whistle-blower,’ upon

which the burden shifts to the defendant to prove that the complained of action ‘occurred for

separate and legitimate reasons, which are not merely pretexts’”); Birthisel v. Tri–Cities Health

Servs. Corp., 424 S.E.2d 606, 612 (W. Va. 1992) (“‘[I]n a retaliatory discharge case, the employer

may defend the discharge by showing a legitimate, nonpretextual, and nonretaliatory reason for its

action.’”).

To the contrary, a claim of malicious prosecution does not require a plaintiff to

demonstrate she qualifies as a “whistleblower.” Taking the Complaint in a light most favorable to

Plaintiff, the Court finds that at least some of Plaintiff’s allegations do not rise to a level of

“wrongdoing” as defined and protected by the Whistle-blower Law. For instance, Plaintiff alleges

it was well known that she and Defendant Cox “did not get along” and Defendant Cox referred to

her as “‘that stupid nurse,’ ‘stupid hillbilly,’ and ‘dumb ass hillbilly.’” Compl. at ¶¶21, 22. As

Defendant Cox was to be promoted as the nurse manager over the Unit in which Plaintiff worked,

Plaintiff expressed her concerns about the promotion. Compl. at ¶¶14, 20-24. Expressing these

types of general concerns are not the type of “wrongdoing” and protected activity contemplated

by the Whistle-blower Law. However, it could be evidence of malice in support of a claim

malicious prosecution or abuse of process claim. Nevertheless, Defendant Cox argues Plaintiff still

fails because she has not alleged procurement, which is a necessary element of malicious

prosecution.

In Norfolk Southern Railway Co. v. Higginbotham, 721 S.E.2d 541 (W. Va. 2011),

the West Virginia Supreme Court explained there are two lines of cases establishing the elements

of a claim for malicious prosecution. 721 S.E.2d at 545. One line of cases provide: “‘To maintain

an action for malicious prosecution it is essential to prove (1) that the prosecution was malicious,

(2) that it was without reasonable or probable cause, and (3) that it terminated favorably to

plaintiff.” Syl. Pt. 1, id. (internal quotation marks and citations omitted). The other line of cases

state:

In an action for malicious prosecution, plaintiff must show:

(1) that the prosecution was set on foot and conducted to its

termination, resulting in plaintiff's discharge; (2) that it was caused

or procured by defendant; (3) that it was without probable cause;

and (4) that it was malicious. If plaintiff fails to prove any of these,

he can not recover.

Syl. Pt. 2, id. (internal quotation marks and citations omitted). Although stated slightly differently,

the West Virginia Supreme Court explained that “[t]he rules delineating the elements of a

malicious prosecution claim in . . . [both lines of cases], are the same, and procurement is an

inherent element in both.” Syl. Pt. 3, id. In this context, the Court further observed that procurement

“requires more than just the submission of a case to a prosecutor; it requires that a defendant assert

control over the pursuit of the prosecution.” Id. at 547; see Black’s Law Dictionary 1401 (11th ed.

2019) (defining procurement as “[t]he act of getting or obtaining something or of bringing

something about.”).

In this case, Plaintiff insists she has sufficiently alleged procurement to defeat a

Rule 12(b)(6) motion. Specifically, Plaintiff asserts in her Complaint that Defendant Cox did not

merely make a false report that resulted in investigations by the LAWV and the WVBON, but she

took an active role in the investigation. In paragraph 80, Plaintiff alleges that one of her co-workers

told her that, when Defendant Cox heard the case was closed and Plaintiff was supposed to return

to work, Defendant Cox contacted “someone in Adult Protective Service (“APS”) to reopen the

case because she was trying to get . . . [Plaintiff] fired.” Compl. at ¶80. Given this allegation, the

Court finds that Plaintiff has stated a plausible claim of malicious prosecution against Defendant

Cox and resolution of whether Defendant Cox’s actions are sufficient to establish procurement is

a matter for discovery. Therefore, the Court DENIES Defendant Cox’s motion with respect to

Count Two.11

11In Count Two, Plaintiff also makes a claim for Abuse of Process, which is different than

a claim for Malicious Prosecution. See Preiser v. MacQueen, 352 S.E.2d 22, 28 (W. Va. 1985)

(stating “‘[t]he distinctive nature of an action for abuse of process, as compared with the actions

for malicious prosecution and false imprisonment, is that it lies for the improper use of a regularly

issued process, not for maliciously causing process to issue, or for an unlawful detention of the

person’” (quoting Glidewell v. Murray-Lacy and Co., 98 S.E. 665, 667 (Va. 1919)). As the parties

have not raised any specific arguments about whether this claim should be dismissed, the Court

does not address it, and the claim remains.

C.

Qualified Immunity

Defendant Cox also argues she is entitled to qualified immunity. In her briefs, she

focuses her argument on her Fourth Amendment claim in Count One. However, as the Court has

found that claim cannot survive for other reasons, her claim for qualified immunity as to Count

One is moot. Additionally, to the extent Defendant Cox is asserting qualified immunity as to the

malicious prosecution and abuse of process claims in Count Two, the Court finds her argument

fails.

Recently, in Hupp v. Cook, 931 F.3d 307 (4th Cir. 2019), the Fourth Circuit

considered qualified immunity under West Virginia law in the context of summary judgment on a

common law claim for malicious prosecution. 931 F.3d at 325-26. The Fourth Circuit recognized

that West Virginia law “affords immunity ‘from personal liability for official acts if the involved

conduct did not violate clearly established laws of which a reasonable official would have

known.’” Id. at 326 (quoting W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 766 S.E.2d 751, 762

(W. Va. 2014) (citation omitted)). Although West Virginia borrows heavily from qualified

immunity jurisprudence for claims brought under § 1983, it also provides there is no immunity if

a “defendant’s alleged conduct . . . [is] ‘fraudulent, malicious, or otherwise oppressive’ to the

plaintiff.” Id. (quoting A.B., 766 S.E.2d at 762; other citation omitted)). Indeed, the West Virginia

Supreme Court reiterated last year that it “has continually and consistently held that one way to

defeat qualified immunity is by alleging that the acts or omissions of a public official or employee

were fraudulent, malicious, or oppressive[, and] . . . our case law has continuously recognized that

a state actor’s malicious conduct will overcome qualified immunity protections.” W. Virginia Div.

of Nat. Res. v. Dawson, 832 S.E.2d 102, 116-17 (W. Va. 2019) (citing Syl. Pt. 1, in part, State v.

Chase Sec., Inc., 424 S.E.2d 591 (W. Va. 1992) (stating “[t]here is no immunity for an executive

official whose acts are fraudulent, malicious, or otherwise oppressive” (other citations omitted)).

Moreover, the West Virginia Supreme Court said that a “determination of whether a state actor’s

conduct was malicious is a question for the fact-finder” Id. at 117 (internal quotation marks,

brackets, and citations omitted). Thus, the Court found summary judgment was inappropriate

where a court “would be required to weigh the evidence and make credibility determinations to

decide whether the conduct was malicious or oppressive[.]” Id.

Similarly, the Fourth Circuit held in Hupp that, when historical factual disputes

exist underlying a claim for malicious prosecution, “[t]hose disputes must be submitted to a jury.

The district court may then ‘reserve for itself the legal question of whether [the defendant] is

entitled to qualified immunity on the facts found by the jury.” Id. at 326 (quoting Willingham v.

Crooke, 412 F.3d 553, 560 (4th Cir. 2005)). In the context of the federal claim for malicious

prosecution, the Fourth Circuit explained that a defendant police officer is not absolved from

liability merely because a magistrate found probable cause to arrest a plaintiff when that probable-

cause determination is predicated solely on the officer’s false or misleading statements. Id. at 324

(citations omitted). As questions of fact existed in Hupp about whether the officer’s statements

were false, the Fourth Circuit found summary judgment was inappropriate because those issues

should be resolved by a jury before the district court “can determine that a reasonable officer in

[the defendant’s] position would have believed that probable cause existed for [the plaintiff’s]

arrest and prosecution.” Id. at 325-26.

In this case, Plaintiff has alleged Defendant Cox’s maliciously and intentionally

filed a false report accusing her of abusing a patient in retaliation for her complaints and

Defendants maliciously and intentionally failed to thoroughly investigate the complaint made

against her. At this point, the Court must accept Plaintiff’s allegation as true. Therefore, as

qualified immunity does not insulate a state actor’s malicious conduct and Plaintiff has stated a

plausible claim, the Court DENIES Defendant Cox’s motion for qualified immunity with respect

to Count Three. See, e.g., Wilson v. Frame, No. 2:19-CV-00103, 2020 WL 1482145, at *10 (S.D.

W. Va. Mar. 23, 2020) (denying the defendants’ claim of qualified immunity on a motion to

dismiss after recognizing a defendant seeking qualified immunity on a motion to dismiss “faces a

formidable hurdle” under the low plausibility pleading standard).

D.

Punitive Damages and

Official Capacity Claims

Lastly, Defendant Cox argues Plaintiff is not entitled to punitive damages against

her in her official capacity pursuant to West Virginia Code §§ 55-17-4(3) and -2(2). Subsection

4(3) provides: “Notwithstanding any other provisions of law to the contrary: . . . (3) No government

agency may be ordered to pay punitive damages in any action,” W. Va. Code § 55-17-4(3), and

subsection 2(2) defines a “Government agency” to include any “public official named as a

defendant or respondent in his or her official capacity[.]” W. Va. Code § 55-17-2(2), in part. In

this light, the Court agrees that the punitive damage claim against Defendant Cox cannot proceed

against her in her official capacity. Although not argued by Defendant Cox, the Court recognizes

punitive damages may be recovered against her in her personal capacity. See Langley v. Arresting

Officer, No. CV 3:17-3520, 2018 WL 4560208, at *4 (S.D. W. Va. Sept. 21, 2018) (stating

“punitive damages are not prohibited when defendants are sued in their individual capacities”).

Thus, as Defendant Cox also is sued in her individual capacity, that portion of her punitive damage

claim remains.

Additionally, Defendant Cox argues that she is absolutely immune from suit in her

official capacity in all respects under the Eleventh Amendment. The Eleventh Amendment

provides “[t]he Judicial power of the United States shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. In Wei-ping Zeng

v. Marshall Univ., 370 F. Supp. 3d 682 (S.D. W. Va. 2019), this Court explained that “[s]overeign

immunity under the Eleventh Amendment protects the State, as well as its agencies, divisions,

departments, and officials. Thus, an officer of a State acting in his or her official capacity is entitled

to sovereign immunity from claims for money damages.” 370 F. Supp. 3d at 690 (citing Will v.

Mich. Dept. of State Police, 491 U.S. 58, 70, 78 (1989)). As Plaintiff in this case seeks monetary

damages, her claims against Defendant Cox and the other Defendants in their official capacities

are barred in their entirety by the Eleventh Amendment.12

IV.

CONCLUSION

Accordingly, for the foregoing reasons, the Court GRANTS Defendants Williams,

Richards, and Kuhn’s Motion to Join Defendant Cox’s Motion (ECF No. 33), GRANTS

Defendant Cox’s Motion to Dismiss Counts One and Three as to all Defendants, DENIES the

12The Eleventh Amendment does not bar an official capacity claim under the Ex parte

Young exception when a plaintiff seeks “‘prospective, injunctive relief . . . to prevent ongoing

violations of federal law.’” Id. (quoting McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010)

(citing Ex Parte Young, 209 U.S. 123, 159–60 (1908)). However, Plaintiff has not made such a

claim for relief in this case.

motion with respect to Count Two, but GRANTS the motion to dismiss Defendant Cox and the

other Defendants in their official capacities. ECF No. 26.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record

and any unrepresented parties.

ENTER: May 11, 2020

UWL.

ROBERT C. CHAMBERS

UNITED STATES DISTRICT JUDGE

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