Neil Williams v. Bonnie Bonar, Ohio County Sheriff

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Neil Williams, Plaintiff Below, Petitioner FILED

November 21, 2014

RORY L. PERRY II, CLERK

vs) No. 14-0327 (McDowell County 14-C-29) SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Bonnie Bonar, Ohio County Sheriff;

Rose Humway, Magistrate;

William Berry, Wheeling Police;

Melvin Kahle; Steven Kenney;

Stephen Herndon, Attorney;

Honorable Arthur M. Recht, Judge-Retired;

John Nanny; Jonathan Byrne;

Joseph John, Attorney;

Honorable David Sims, Judge, Ohio County;

Scott Smith, Ohio County Prosecutor;

Defendants Below, Respondents

MEMORANDUM DECISION

Petitioner Neil Williams, appearing pro se, appeals the order of the Circuit Court of

McDowell County, entered March 14, 2014, that (1) dismissed Senior Status Magistrate Rose

Humway, Senior Status Judge Arthur M. Recht, and Judge David Sims, with prejudice, because

they had absolute judicial immunity from petitioner’s action; and (2) dismissed all defendants

because venue was not proper in McDowell County. Respondents Humway, Recht, and Sims, by

counsel John M. Hedges and Teresa J. Lyons, filed a response. Respondents Bonnie Bonar,

William Barry, Melvin Kahle, John Nanny, Jonathan Byrne, and Scott Smith, by counsel Thomas

E. Buck, filed a response and a motion to dismiss. Respondent Stephen Herndon, appearing pro se,

filed a response and a motion to dismiss. Respondent Joseph John, appearing pro se, filed a

response and a motion to dismiss.1

The Court has considered the parties’ briefs and the record on appeal. The facts and legal

arguments are adequately presented, and the decisional process would not be significantly aided

by oral argument. Upon consideration of the standard of review, the briefs, and the record

presented, the Court finds no substantial question of law and no prejudicial error. For these

1

In their motions, respondents argue that petitioner’s appeal was not perfected because he

failed to file an appendix. See Rule 5(g)(2), W.V.R.A.P. However, because we can dispose of

petitioner’s appeal on the same grounds on which the circuit court ruled, see infra, we decline to

address this issue.

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reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21

of the Rules of Appellate Procedure.

On November 17, 1998, in the Circuit Court of Ohio County, West Virginia, petitioner

pled guilty to and was convicted of eight counts of sexual assault in the third degree; one count of

sexual abuse in the third degree; two counts of sexual abuse by a parent, guardian, or a custodian;

one count of exhibiting obscene material to a minor; one count of sexual abuse in the first degree;

and one count of photographing a minor in sexually explicit conduct.

Between October of 2000 and December of 2010, petitioner filed three petitions for a writ

of habeas corpus challenging his Ohio County convictions. Petitioner obtained partial relief in his

first habeas proceeding, in which the Circuit Court of Ohio County entered an agreed order on July

21, 2005, to reduce petitioner’s sentences for the two counts of sexual abuse by a parent, guardian,

or a custodian pursuant to the statute that was in effect at the time petitioner committed his

offenses. On November 8, 2005, the Ohio County court denied all other relief. Petitioner’s two

subsequent habeas petitions were dismissed by the Ohio County court. This Court affirmed the

dismissal of the third petition in Williams v. Ballard, No. 11-0889, 2012 WL 4373180 (W.Va.

Supreme Court, September 21, 2012) (memorandum decision).

Petitioner is currently incarcerated as a result of his Ohio County convictions in Stevens

Correctional Center in McDowell County, West Virginia. On February 14, 2014, petitioner filed

an action against respondents—the Ohio County magistrate, judges, prosecutors, defense

attorneys, and police officers2 involved in either his criminal case or his habeas proceedings, or

both—in the Circuit Court of McDowell County, West Virginia, alleging that they acted in various

combinations to rob petitioner of his good name, put him in prison, and keep him incarcerated.

Petitioner sought over $1,000,000 in damages.

Respondents Humway, Recht, and Sims filed a motion to dismiss based on judicial

immunity. Respondent John moved to dismiss petitioner’s action because venue was not proper in

McDowell County. In granting the first motion, the Circuit Court of McDowell County, West

Virginia, found that Respondents Humway, Recht, and Sims had absolute judicial immunity from

petitioner’s action because all of petitioner’s allegations against them concerned (1) functions

normally performed by a judicial officer; and (2) acts that were not taken in the complete absence

of jurisdiction. In granting the second motion, the circuit court determined that venue was

improper in McDowell County because (a) all of the respondents reside in Ohio County except for

Respondent Byrne, who lives in Kanawha County, West Virginia; (b) none of the respondents

reside in McDowell County; and (c) none of the causes of action asserted by petitioner allegedly

arose in McDowell County—rather, they all allegedly arose in Ohio County. Accordingly, the

McDowell County court (1) dismissed Respondents Humway, Recht, and Sims, with prejudice,

because they had judicial immunity from petitioner’s action; and (2) dismissed all respondents

because venue was not proper in McDowell County.

2

According to petitioner’s complaint, Respondent Nanny was a social worker, who was

also a retired truant officer.

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Petitioner now appeals the McDowell County Circuit Court’s March 14, 2014 order

dismissing his action. Petitioner raises four assignments of error: (1) the circuit court erred in

dismissing the action because the presiding judge, Judge Rudolph J. Murensky, II, had a conflict of

interest; (2) Respondents Humway, Recht, and Sims did not have judicial immunity from

petitioner’s action because they were acting under only the color of state law; and (3) the circuit

court erred in dismissing the action for improper venue because the court should have appointed

petitioner counsel and allowed him to amend his complaint. We address each of these issues in

turn.

Petitioner has abandoned his claim of a conflict of interest

In alleging a conflict of interest, Petitioner asserts that one of Judge Murensky’s relatives

works at Stevens Correctional Center (where petitioner is incarcerated), but he fails to explain the

relevance of that fact. “Although we liberally construe briefs in determining issues presented for

review, issues which are not raised, and those mentioned only in passing but are not supported with

pertinent authority, are not considered on appeal.” State v. LaRock, 196 W.Va. 294, 302, 470

S.E.2d 613, 621 (1996). Assuming, arguendo, that Judge Murensky’s relative works at the facility

where petitioner is incarcerated, the relevance of this fact is not clear because petitioner is not

suing Stevens Correctional Center—or its warden—over any terms or conditions of his

confinement. Because petitioner fails to fully brief this issue to explain its relevance, we find that it

has been abandoned. See id.3

Respondents Humway, Recht, and Sims had judicial immunity

The circuit court dismissed, with prejudice, petitioner’s claims against Respondents

Humway, Recht, and Sims because he failed to state a claim against them on which relief can be

granted;4 accordingly, our review is de novo. See Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan

Pontiac Buick, Inc., 194 W.Va. 770, 773, 461 S.E.2d 516, 519 (1995). Petitioner essentially argues

that the acts he alleged against these respondents were taken in the complete absence of

jurisdiction. See Syl. Pt. 4, in part, Roush v. Hey 197 W.Va. 207, 208, 475 S.E.2d 299, 300 (1996)

(“[A]bsolute judicial immunity applies (1) to all judicial act[s]; unless (2) those acts fall clearly

outside the judge’s subject matter jurisdiction.”). Respondents Humway, Recht, and Sims counter

that all the alleged acts taken by them were in the course of either petitioner’s criminal case or his

three habeas proceedings—over which they clearly had subject matter jurisdiction—and

therefore, judicial immunity bars petitioner’s instant action. We agree and find that petitioner avers

that the alleged acts fell outside these respondents’ jurisdiction only because they ruled against

him during the course of his criminal case and in subsequent habeas proceedings. While petitioner

has challenged these rulings, he has not been successful. Accordingly, we conclude that the circuit

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Petitioner also failed to bring this issue to Judge Murensky’s attention until after his

action had been dismissed. See Syl. Pt. 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d

733, 734 (1958) (“This Court will not pass on a nonjurisdictional question which has not been

decided by the trial court in the first instance.”).

4

See Rule 12(b)(6), W.V. R.C.P.

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court did not err in dismissing Respondents Humway, Recht, and Sims with prejudice on the

ground of absolute judicial immunity.

Petitioner filed his action in an improper venue

Given that the circuit court dismissed all respondents for improper venue, we find that we

review this dismissal only for an abuse of discretion. See Syl. Pt. 1, United Bank, Inc. v. Blosser,

218 W.Va. 378, 379, 624 S.E.2d 815, 819 (2005) (establishing standard for review for such

dismissals). Petitioner argues that the circuit court should have appointed him counsel and/or

permitted him to amend his complaint so that his action “could have been transferred to a proper

venue.” (Emphasis added.) Thus, we find that petitioner concedes that venue was improper in

McDowell County. Respondents generally argue that appointment of counsel—which is rare in

civil actions—and leave to amend petitioner’s complaint would have done nothing to change the

fact that McDowell County constituted an improper venue for the reasons the circuit court gave in

its order: (1) all of the respondents reside in Ohio County except for Respondent Byrne, who lives

in Kanawha County; (2) none of the respondents reside in McDowell County; and (3) none of the

causes of action asserted by petitioner allegedly arose in McDowell County—rather, they all

allegedly arose in Ohio County. We agree and conclude that the circuit court did not abuse its

discretion in dismissing all respondents on the ground of improper venue.

For the foregoing reasons, we find no error in the decision of the Circuit Court of

McDowell County and affirm its March 14, 2014, order that (1) dismissed Respondents Humway,

Recht, and Sims, with prejudice, because they had judicial immunity from petitioner’s action; and

(2) dismissed all respondents because venue was not proper in McDowell County.5

Affirmed.

5

We find that, unlike the circuit court’s dismissal of Respondents Humway, Recht, and

Sims—which the court specifically designated as “with prejudice”—the court’s dismissal of all

respondents for improper venue was without prejudice. In the event that petitioner refiles his

action in a proper venue, we note that it is likely that other respondents in this case could have

immunity as well. See, e.g., Mooney v. Frazier, 225 W.Va. 358, 370 n. 12, 693 S.E.2d 333, 345 n.

12 (2010) (absolute prosecutorial immunity); Syl. Pt. 6, City of Saint Albans v. Botkins, 228 W.Va.

393, 394-95, 719 S.E.2d 863, 864-65 (2011) (qualified immunity for police officers). In addition,

“unless there is a bona fide dispute as to the foundational or historical facts that underlie the

immunity determination, the ultimate questions of statutory or qualified immunity are ripe for

summary disposition.” Syl. Pt. 5, in part, Botkins, 228 W.Va. at 394, 719 S.E.2d at 864 (Internal

citations and omissions omitted.)

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ISSUED: November 21, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis

Justice Brent D. Benjamin

Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Allen H. Loughry II

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