Opinion

Hank Heckman and Loren Garcia v. Betsy Jividen, Jeff Sandy, and Patrick Morrisey, Individually, and David Kelly, Commissioner of the West Virginia Division of Corrections and Rehabilitation, Michael Baylous, Secretary of the Department of Homeland Security, and John B. McCuskey, Attorney General of West Virginia, in their Official Capacities

Court
West Virginia Supreme Court
Filed
Jun 1, 2026
Status
Unpublished
Nature of suit
Tort, Contract, and Real Property
Cited by
0 cases
Authority
More cited than 40.8%

The opinion

FILED

June 1, 2026

STATE OF WEST VIRGINIA C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

SUPREME COURT OF APPEALS OF WEST VIRGINIA

Hank Heckman and Loren Garcia,

Petitioners Below, Petitioners

v.) No. 24-322 (22-ICA-163)

Betsy Jividen, Jeff Sandy,

and Patrick Morrisey, Individually,

and David Kelly, Commissioner of the

West Virginia Division of Corrections

and Rehabilitation, Michael Baylous,

Secretary of the Department of Homeland

Security, and John B. McCuskey,

Attorney General of West Virginia,

in their Official Capacities,

Respondents Below, Respondents

MEMORANDUM DECISION

Petitioners Hank Heckman and Loren Garcia appeal the decision of the Intermediate Court

of Appeals of West Virginia (“ICA”), affirming the orders of the Circuit Court of Kanawha County

that granted the respondents’ motions to dismiss their complaint.1 See Heckman v. Jividen, 249 W.

Va. 734, 901 S.E.2d 297 (Ct. App. 2024). The petitioners argue that the ICA erred in concluding

that the respondents were entitled to absolute and qualified immunity. Upon our review, finding

no substantial question of law and no prejudicial error, we determine that oral argument is

unnecessary and that a memorandum decision summarily affirming the ICA’s decision is

appropriate. See W. Va. R. App. P. 21(c).

The petitioners filed civil complaints, individually and as a purported class action, which

were consolidated, alleging various claims against the respondents in their individual and official

capacities. The claims related to review of the internal policies of the West Virginia Department

1

The petitioners are represented by counsel Jeremy B. Cooper. Respondents Betsy Jividen,

Jeff Sandy, David Kelly, in his official capacity as Commissioner of the West Virginia Division

of Corrections and Rehabilitation, and Michael Baylous, in his official capacity as Secretary of the

Department of Homeland Security, are represented by William E. Murray and Andrew R. Herrick.

Respondents Patrick Morrisey and John B. McCuskey, in his official capacity as Attorney General

of West Virginia, are represented by Johnnie E. Brown and James A. Muldoon. Because new

officials took office while this appeal was pending, their names have been substituted for the

respondents sued in their official capacity. See W. Va. R. App. P. 41(c).

1

of Corrections and Rehabilitation (“DCR”) for commutation from sentences for good conduct

(“good time credit”) and for parole eligibility. According to the complaint, after that internal

review, DCR adopted a new policy making inmates who are incarcerated for violating conditions

of their supervised release ineligible for both parole and for good time credit. Later, DCR adopted

a written policy removing good time credit eligibility for those inmates incarcerated based on

revocation of supervised probation. According to the petitioners, DCR did not issue a similar

written policy regarding parole eligibility. Relevant to this appeal, the complaint alleged that these

changes then led the respondents to take related actions that resulted in the petitioners’

reincarceration, associated litigation, and the Legislature’s adoption of West Virginia Code § 15A-

4-17, a statute that codified DCR’s policy involving eligibility for good time credit. The

respondents filed motions to dismiss, which were granted by the circuit court. The circuit court

concluded, among other things, that Respondents Jividen and Sandy were entitled to qualified

immunity for the petitioners’ constitutional claims and absolute immunity for administrative

policy-making functions. In a separate order, the circuit court also concluded, among other things,

that Respondent Morrisey was entitled to absolute prosecutorial immunity, qualified immunity,

and sovereign immunity.

The petitioners appealed to the ICA. After analyzing the complaint allegations, the ICA

concluded that absolute immunity barred the petitioners’ claims involving judicial and legislative

acts against Respondent Morrisey, then-Attorney General, and Respondent Sandy, then-Secretary

of the Department of Homeland Security. Likewise, the ICA concluded that the petitioners’ claims

against Respondent Jividen, then-Commissioner of the DCR, and Respondent Sandy involving

administrative policy-making were barred by absolute immunity. The remaining claim involved

the issuance of related arrest warrants by Respondent Jividen. The ICA determined that qualified

immunity barred that claim because, at that time, the discretionary act of issuing arrest warrants

did not violate a clearly established constitutional or statutory right of which she should reasonably

have been aware. The ICA declined to address any other assignments of error. The petitioners

appeal.

On appeal to this Court, the petitioners assert only two assignments of error: that the ICA

erred in concluding that qualified immunity applied to their claims involving constitutional rights

and that the ICA erred in determining that absolute immunity applied to all the alleged actions of

Respondents Morrisey and Sandy. We apply a de novo standard of review to an ICA decision from

a circuit court’s grant of a motion to dismiss. Syl. Pt. 1, Folse v. Rollyson, 251 W. Va. 566, 915

S.E.2d 344 (2025). Here, upon consideration of the record and briefs, we conclude there is no

reversible error based on the two assignments of error presented to this Court, and we agree that

the allegations against the respondents are barred by absolute and qualified immunity. See, e.g.,

W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014)

(discussing the application of qualified immunity for the discretionary acts of public officials

absent violation of clearly established laws which a reasonable official would have known, and

absolute immunity for judicial, legislative, executive, or administrative policy-making acts or

omissions). Accordingly, we summarily affirm.

Affirmed.

ISSUED: June 1, 2026

2

CONCURRED IN BY:

Chief Justice C. Haley Bunn

Justice William R. Wooton

Justice Thomas H. Ewing

Justice Gerald M. Titus III

DISQUALIFIED:

Justice Charles S. Trump IV

3

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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