The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
DAVID B., et al.,
Plaintiffs,
v. CIVIL ACTION NO. 2:25-cv-00109
JOSHUA VANBIBBER, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
The Court has reviewed Defendants Vanbibber, Gandee, and Kerns’s Motion to Dismiss
(Document 5), the Memorandum in Support of Defendants Vanbibber, Gandee, and Kerns’s
Motion to Dismiss (Document 6), Defendant Ruppert’s Notice of Joinder in Defendants
Vanbibber, Gandee, and Kerns’s Motion to Dismiss and Memorandum in Support of Motion to
Dismiss (Document 10), the Plaintiffs’ Brief in Opposition to Defendants’ Motion to Dismiss
(Document 9), the Plaintiffs’ Motion for Their Brief in Opposition to Defendants’ Motion to
Dismiss Also Be Incorporated by Reference in Response to Defendant Tasha Ruppert’s Joinder in
Defendants’ Motion to Dismiss (Document 19), and the Defendants’ Reply to Plaintiffs’ Brief in
Opposition to Defendants’ Motion to Dismiss (Document 20). For the reasons stated herein, the
Court finds that the motion to dismiss should be denied.
FACTUAL ALLEGATIONS
The Plaintiffs in this matter are S.M. and David B., as guardian and next friend of minors
J.B. and M.B. David B. is the biological grandparent and adoptive parent of J.B. and M.B. They
name the following Defendants: Joshua Vanbibber, Adam Gandee, Stephanie Kerns, and Tasha
Ruppert. The Defendants were all employees of the West Virginia Department of Health and
Human Resources (DHHR)1 at the time of the events alleged in the Complaint (Document 1).
They are all sued in their individual capacities, as employees of DHHR.
Plaintiff S.M. is the biological daughter of M.J.K. J.B. and M.B. are biological sisters
who were adopted by M.J.K. They began living in M.J.K.’s home in early 2015, when S.M. was
twelve years old, J.B. was five, and M.B. was three. Soon after adopting J.B. and M.B., M.J.K.
allowed her boyfriend, J.L., to move into the home with her biological and adopted daughters.
J.L. was a registered sex offender who had been convicted of raping a nine-year-old female
relative. M.J.K. and J.L. married in 2016.
The Jackson County, West Virginia, office of the WVDHHR received a referral call stating
that M.J.K. had a registered sex offender in her home with the children and was aware of his status
as a sex offender. The case was assigned to Defendant Kerns, although another worker conducted
initial interviews with the children. The interview notes do not indicate that the children in the
home were asked about whether J.L. was ever left alone with the children or whether he provided
care for the children. J.L. told Ms. Kerns that he was allowed to be around children, despite his
sex offender status, and M.J.K. and J.L. both stated that she did not leave the children with J.L.
and that he was not a caregiver for the children. A babysitter was never interviewed, and no other
witnesses familiar with the family were interviewed. Ms. Kerns had not handled cases in which
a sex offender had access to children. She prepared a Family Functioning Assessment (FFA),
1 WVDHHR has been reorganized into three separate agencies, with the Department of Human Services (DHS)
responsible for matters related to child protection and the foster care system. DHS was substituted for DHHR in a
prior state case filed by the Plaintiffs, and the Court has used both WVDHHR and DHS to refer to the agency.
2
finding concerns related to J.L.’s conviction, but no impending dangers. Her supervisor,
Defendant Vanbibber, approved the FFA without requiring additional interviews, seeking more
records, or directing the filing of a neglected child petition.
The Defendants received a second referral on April 25, 2018, reporting that M.B. “told
another girl that someone was kissing her private parts” and that “the stepfather living in the
residence is a registered sex offender.” (Compl. at ¶ 25.) The investigation was assigned to
Defendant Ruppert. It was her first case involving an individual on the sex offender registry.
Ms. Ruppert interviewed M.B., another student at M.B.’s school, S.M., J.L., and S.M.’s brother.
J.L. claimed that he was under no restrictions regarding contact with children. Ms. Ruppert also
indicated that she spoke with Trooper Dan Herdman, who checked J.L.’s compliance with the sex
offender registration requirements, and he said there were no concerns, although Trooper Herdman
testified that he believed a sex offender being around children would always be a cause for concern.
Ms. Ruppert had concerns about three minor girls living in a home with a registered sex offender,
but believed, based on a conversation with her supervisor, Defendant Gandee, that no further action
was available. She found no disclosure of sexual abuse and no evidence of abuse or neglect, and
the children remained in the home.
At the time of the 2015 and 2018 referrals and investigations, there had been several cases
holding that exposing children to sex offenders constituted abuse and neglect and could warrant
termination of parental rights, including in Jackson County. In addition, DHHR policies in place
in 2015 and 2018 directed workers to open a case and file a petition seeking termination of parental
rights when a parent, guardian, or custodian is on the sex offender registry.
3
On July 22, 2020, the Defendants received another referral, reporting that S.M. had been
sexually abused by her stepfather, J.L., for six years, with the knowledge of her mother. The
Defendants learned that J.L. was sexually abusing J.B. as well. During interviews at the Child
Advocacy Center or in subsequent interviews, S.M., J.B., and M.B. all reported sexual abuse by
J.L. S.M.’s abuse began when she was approximately 12 years old. J.L. was arrested on July
23, 2020. On December 21, 2022, he was convicted of 136 counts of sexual abuse, first and
second degree; sexual assault; sexual abuse by parent, guardian, custodian; incest; and soliciting a
minor via computer for his abuse of S.M. and J.B.
The Plaintiffs bring the following causes of action: Count I – 42 U.S.C. §1983 violation of
the Fourteenth Amendment right to bodily integrity; Count II – 42 U.S.C. § 1983 civil conspiracy;
Count III – 42 U.S.C. § 1983 state-created danger; Count IV – aiding and abetting violation of the
West Virginia Human Rights Act; Count V – civil conspiracy; and Count VI – negligence. They
seek compensatory and punitive damages.
STANDARD OF REVIEW
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or
pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed. R. Civ.
P. 8(d)(1).
4
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544,
555 (2007)). In other words, “a complaint must contain “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid of further
factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal
quotation marks omitted).
The Court must “accept as true all of the factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual
inferences from those facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231,
244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the
assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore,
the court need not “accept as true unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as
a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
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.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff
to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis,
5
588 F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint,
“articulate facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling
him to relief.” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining
whether a complaint states [on its face] a plausible claim for relief [which can survive a motion to
dismiss] will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
DISCUSSION
A. Arguments
The Defendants argue that any official status claims must be dismissed because 42 U.S.C.
§ 1983 does not permit claims against states or state officials acting in their official capacities, and
states and their officials acting in their official capacities are immune from suits seeking money
judgments under the Eleventh Amendment. The Defendants further argue that res judicata bars
the Plaintiffs’ claims. The Defendants state that the Plaintiffs filed this case two days after their
claims were rejected in state court. In addition to arguing that claim preclusion bars the Plaintiffs’
claims, the Defendants argue that issue preclusion or collateral estoppal bars re-litigation of the
specific issues that were litigated in the earlier state suit. They argue that the West Virginia
Supreme Court found that the Defendants had not violated any clearly established rights, based on
the same facts, and that finding defeats every claim asserted herein. Finally, the Defendants
contend that the Rooker-Feldman doctrine bars this Court from reviewing the state court decision
in this matter.
The Plaintiffs contend that they pursued the state action against only the WVDHHR,
because, although their complaint was also against “Unknown DHHR Supervisors,” it was never
6
amended to include the actual supervisors after their identities were discovered. They argue that
the state case involved a negligence claim against the WVDHHR, while this federal case involves
§1983, civil conspiracy, and West Virginia Human Rights Act claims against the individual DHHR
employees and supervisors. The Plaintiffs disclaim any intent to sue the Defendants in their
official capacities. They argue that the West Virginia Supreme Court’s decision in their state case
was limited to finding that DHHR was entitled to qualified immunity as to the alleged negligence
of its employees, and that finding does not necessarily mean the employees could not be subject
to liability or that the instant federal claims could not survive. They contend that they are now
pursuing new theories against new defendants, not relitigating the same claims dismissed by the
state court. They argue that res judicata is not applicable because there was no final adjudication
on the merits of any issue other than qualified immunity as to the WVDHHR, the cases do not
involve the same defendants, and the causes of action are distinct. The Plaintiffs further contend
that Rooker-Feldman is not applicable because the outcome of the state case is not dispositive as
to any legal issue presented in this federal case.
Given the Plaintiffs’ clarification that they did not intend to bring official capacity claims,
the Defendants assert that issue preclusion, rather than res judicata, is the proper basis for their
motion to dismiss.
B. Applicable Law – Collateral Estoppel and Rooker-Feldman
“Collateral estoppel precludes relitigation of an issue decided previously in judicial or
administrative proceedings provided the party against whom the prior decision was asserted
enjoyed a full and fair opportunity to litigate that issue in an earlier proceeding.” In re McNallen,
7
62 F.3d 619, 624 (4th Cir. 1995). In federal court, a state court judgment is given preclusive effect
in accordance with the law of collateral estoppel in the forum state. Id.
“[C]ollateral estoppel requires identical issues raised in successive proceedings and
requires a determination of the issues by a valid judgement to which such determination was
essential to the judgment.” State v. Miller, 459 S.E.2d 114, 120 (W. Va. 1995). Four conditions
are required to bar a claim based on collateral estoppel:
1) The issue previously decided is identical to the one presented in
the action in question; (2) there is a final adjudication on the merits
of the prior action; (3) the party against whom the doctrine is
invoked was a party or in privity with a party to a prior action; and
(4) the party against whom the doctrine is raised had a full and fair
opportunity to litigate the issue in the prior action.
Syl. Pt. 1, Ruble v. Rust-Oleum Corp., 902 S.E.2d 873, 874 (W. Va. 2024).
The Rooker–Feldman doctrine is derived from two Supreme Court cases. In Rooker, the
Supreme Court explained that lower federal courts could not “entertain a proceeding to reverse or
modify the judgment for errors” from a state court decision, because to “do so would be an exercise
of appellate jurisdiction” and “[t]he jurisdiction possessed by the District Court is strictly original.”
Rooker v. Fid. Tr. Co., 263 U.S. 413, 416 (1923). In Feldman, the Supreme Court held that “a
United States District Court has no authority to review final judgments of a state court in judicial
proceedings,” as “[r]eview of such judgments may be had only in this Court.” D.C. Ct. of Appeals
v. Feldman, 460 U.S. 462, 482 (1983).
“The Rooker–Feldman doctrine bars consideration not only of issues actually presented to
and decided by a state court, but also of constitutional claims that are ‘inextricably intertwined
with’ questions ruled upon by a state court, as when success on the federal claim depends upon a
determination ‘that the state court wrongly decided the issues before it.’” Plyler v. Moore, 129
8
F.3d 728, 731 (4th Cir. 1997) (quoting Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir.
1995)). The Supreme Court has recently emphasized that “Rooker-Feldman . . . is a narrow
doctrine, confined to ‘cases brought by state-court losers complaining of injuries caused by state-
court judgments rendered before the district court proceedings commenced and inviting district
court review and rejection of those judgments.’” Lance v. Dennis, 546 U.S. 459, 464 (2006)
(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
C. Prior State Litigation
In the prior state case, the same Plaintiffs sued the West Virginia Department of Health
and Human Resources, now known as the West Virginia Department of Human Services (DHS),
and “Unknown DHHR Supervisors” based on the same factual allegations. The state complaint
contained claims for “ordinary & gross negligence, reckless misconduct, fraudulent, malicious,
oppressive conduct,” and “state constitutional tort.” (Document 5-1.) The Plaintiffs ultimately
proceeded only with the negligence claims against the DHHR in the state courts. The West
Virginia Supreme Court reversed the circuit court’s denial of summary judgment to DHS, finding
that DHS was entitled to qualified immunity. W. Virginia Dep't of Hum. Servs. v. David B., Next
Friend of J.B., 911 S.E.2d 884, 887 (W. Va. 2024). The court held that “for purposes of qualified
immunity, internal agency policies, procedures, manuals, guidelines, or similar documents that
have not been legislatively approved are not, and cannot be used to create, clearly established
statutory rights or law of which a reasonable person would have known.” Id. at 896 (rejecting the
argument that the DHS policies cited by the Plaintiffs in both the state case and this case constituted
clearly established law).
9
The West Virginia Supreme Court next considered whether the Plaintiffs could show that
DHS was not entitled to qualified immunity based on the “fraudulent, malicious, or otherwise
oppressive” acts of its employees, explaining that agencies may be held vicariously liable for the
conduct of employees acting within the scope of their employment. Id. at 896-97. Thus,
although “the Plaintiffs elected not to pursue relief from DHS employees for their allegedly
oppressive acts,” they “remain germane to [the] analysis of DHS’s claim to qualified immunity
because under West Virginia law, the qualified immunity of an agency is inexorably intertwined
with that of its officers, employees, and agents based on the doctrine of respondeat superior.” Id.
at 896. The court ultimately found that “[t]he Plaintiffs have produced no evidence before this
Court or in the circuit court suggesting that the DHS employees who investigated the CPS referrals
acted or failed to act because of an improper motive,” and because oppressive conduct requires an
improper motive, the court found that DHS was entitled to qualified immunity. The court further
found that a negligent training and supervision claim could not survive because the underlying
DHS policies that were allegedly violated did not create clearly established rights. Id. at 899.
D. Analysis
The Defendants urge the Court to find that the West Virginia Supreme Court’s findings
establish that the Plaintiffs are not entitled to relief as to any of their claims. The Court finds both
the Defendants’ reading of the West Virginia Supreme Court decision and their proposed
application of collateral estoppel to be overly broad. The West Virginia Supreme Court found
only that DHS was entitled to qualified immunity under state law as to a negligence claim. No
claims against individual employees were presented in the state case, and the specific causes of
action are not identical. West Virginia qualified immunity is not legally identical to federal
10
qualified immunity. The Defendants are correct that collateral estoppel precludes this Court from
resolving key issues decided by the West Virginia Supreme Court differently, including the finding
that DHS policies do not constitute clearly established statutory rights or law for purposes of
qualified immunity. 2 However, the Defendants have not demonstrated that outcome
determinative issues in the present case are identical to those decided in the state case. The motion
to dismiss does not address the elements of the Plaintiffs’ claims or assert any defenses thereto
beyond collateral estoppel and Rooker-Feldman. Given the specific, relatively narrow, issues
decided by the West Virginia Supreme Court, the Court cannot find that all claims presented by
the Plaintiffs regarding the same events are necessarily precluded.
For the same reasons the Court finds that collateral estoppel does not require dismissal of
the Plaintiffs’ claims at this stage, the Court finds that Rooker-Feldman does not bar the Plaintiffs’
claims. It is not clear at this stage that the Court would have to review or modify the state decision
in order to hear the Plaintiffs’ claims. Therefore, the Court finds that the Defendants’ motion to
dismiss should be denied.
CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that
Defendants Vanbibber, Gandee, and Kerns’s Motion to Dismiss (Document 5) be DENIED. The
Court further ORDERS that Defendant Ruppert’s Notice of Joinder in Defendants Vanbibber,
Gandee, and Kerns’s Motion to Dismiss and Memorandum in Support of Motion to Dismiss
(Document 10) and the Plaintiffs’ Motion for Their Brief in Opposition to Defendants’ Motion to
2 Indeed, the Court would be bound by that precedent even if it were established in an unrelated case.
11
Dismiss Also Be Incorporated by Reference in Response to Defendant Tasha Ruppert’s Joinder in
Defendants’ Motion to Dismiss (Document 19) bb GRANTED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER: August 26, 2025
IRENE C. □ G
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF WEST VIRGINIA
12