# Hoback v. Cox

> District Court, S.D. West Virginia · May 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10729002

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** May 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10729002

## How later opinions describe it (automated extraction)

- stating “[t]here is no immunity for an executive official whose acts are fraudulent, malicious, or otherwise oppressive” (other citations omitted)
- 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

## Opinion text

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

-22-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729002. Public record. Not legal advice.