The opinion
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
B.R.,
Plaintiff Below, Petitioner
FILED
vs.) No. 17-0564 (Kanawha County 16-C-1540) May 14, 2018
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
West Virginia Department of OF WEST VIRGINIA
Health and Human Resources,
Bureau for Children and Families,
Child Protective Services,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioner B.R., by counsel Christopher T. Pritt, appeals the May 22, 2017, order of the
Circuit Court of Kanawha County granting respondents’ motion to dismiss her complaint
alleging negligence.1 Respondents West Virginia Department of Health and Human Resources
(“DHHR”), the Bureau for Children and Families, and Child Protective Services, by counsel
Julie Meeks Greco and Katie L. Hicklin, filed a response in support of the circuit court’s order.
Petitioner filed a reply. On appeal, petitioner alleges that the circuit court erred in granting
respondents’ motion to dismiss based on qualified immunity and failing to follow this Court’s
requirements set forth in Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649
(1996).
This 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, this Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In October of 2016, petitioner filed a civil complaint against the West Virginia DHHR,
the Bureau for Children and Families, and Child Protective Services that alleged negligence
against those entities. Specifically, petitioner alleged that, upon her removal from her parents’
home in 1998 due to abuse and neglect, respondents subsequently placed her in the home of her
aunt and uncle. Petitioner’s complaint further alleged that between 2010 and 2013, respondents
“received a plethora of reports that [she] was in imminent danger and endured abuse” while in
this placement and that she self-reported her aunt and uncle’s abuse to the DHHR, yet that
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
1
agency took no action. According to the complaint, as a result of respondents’ inaction,
petitioner “endured years of sexual assault, molestation, rape, and further beatings in the home of
her aunt and uncle.”
In February of 2017, respondents filed a motion to dismiss the complaint on the basis that
they were entitled to qualified immunity. Thereafter, petitioner filed a response to the motion to
dismiss. Ultimately, the circuit court granted the same, finding that petitioner’s suit was barred
based on respondents’ qualified immunity. It is from that order that petitioner appeals.
“Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de
novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461
S.E.2d 516 (1995). Moreover, we have held that
“[t]he ultimate determination of whether qualified or statutory immunity
bars a civil action is one of law for the court to determine. Therefore, 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. 1, Hutchison v. City of Huntington, 198
W.Va. 139, 479 S.E.2d 649 (1996).
Syl. Pt. 3, W.Va. Reg’l Jail and Correctional Facility Auth. v. A.B., 234 W.Va. 492, 766 S.E.2d
751 (2014). Upon our review, we find no error in the circuit court’s granting of respondents’
motion to dismiss.
On appeal, petitioner argues that the circuit court erred in granting respondents’ motion to
dismiss because she stated a claim upon which relief could be granted and sufficient to withstand
respondents’ claim of qualified immunity. We do not agree. Importantly, this Court has held that
“[i]f a public officer is either authorized or required, in the exercise of his
judgment and discretion, to make a decision and to perform acts in the making of
that decision, and the decision and acts are within the scope of his duty, authority,
and jurisdiction, he is not liable for negligence or other error in the making of that
decision, at the suit of a private individual claiming to have been damaged
thereby.” Syl. Pt. 4, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995).
W.Va. Reg’l Jail and Correctional Facility Auth., 234 W.Va. at 497, 766 S.E.2d at 756, Syl. Pt. 6
(emphasis added). Indeed, in addressing the issue of qualified immunity in that case, we held that
“[i]t is critical to note that respondent pled only simple negligence against the WVRJCFA; she
did not plead a violation of her civil rights by the WVRJCFA or any of its officials.” Id. at 515,
766 S.E.2d at 774. Similarly, petitioner herein pled only one cause of action against respondents;
negligence.
On appeal, petitioner argues that she “did not just plead simple negligence.” Instead, she
argues that she pled that “the acts and omissions of defendant DHHR’s employees and/or agents
were within the scope of the employee and/or agent’s duties, authority, and/or employment.” She
further argues that she pled that “as a direct and proximate result of the wrongful acts and
2
omissions of the defendant, plaintiff was repeatedly molested, raped, and otherwise abused.”
Finally, she argues that she generally pled that the alleged acts or omissions “were in violation of
clearly established West Virginia constitutional, statutory, and legal rights . . . .”
Petitioner’s complaint alleged only one cause of action. Specifically, all of the allegations
petitioner levies against respondents are included under the heading “COUNT 1:
NEGLIGENCE[.]” In support of her claim of negligence, petitioner alleged that respondents
failed to act in the face of “independent, credible” reports of abuse and failed to protect her from
this abuse. She further alleged that the DHHR had a duty to (1) keep her safe and secure, (2)
timely and adequately respond to all complaints, (3) adequately train and supervise its
employees, and (4) adequately staff Child Protective Service’s workforce. Because petitioner
argued that the DHHR breached these alleged duties, she argues that this constitutes prima facie
negligence. That petitioner additionally included the broad assertion that respondents’ alleged
acts or omissions were in violation of “clearly established West Virginia constitutional, statutory,
and legal rights” does not extend her cause of action beyond that which is plainly asserted;
namely, negligence. Accordingly, we agree with the circuit court’s finding that “[p]leading
simple negligence, without a violation of a clearly established right, is insufficient to overcome
qualified immunity.”
Further, we have held as follows:
“A public executive official who is acting within the scope of his authority
and is not covered by the provisions of W. Va.Code 29-12A-1 et seq. [the West
Virginia Governmental Tort Claims and Insurance Reform Act], is entitled to
qualified 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. There is no immunity for an executive official whose acts are fraudulent,
malicious, or otherwise oppressive.” Syllabus, in part, State v. Chase Securities,
Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992).
W.Va. Reg’l Jail and Correctional Facility Auth., 234 W.Va. at 497, 766 S.E.2d at 755, Syl. Pt.
5. Here, petitioner did not allege that any acts relevant to this action were committed
fraudulently, maliciously, or otherwise oppressively. Moreover, as set forth above, she failed to
identify any specific law that was allegedly violated. As such, the circuit court was correct in
finding that petitioner’s “general allegation that the DHHR’s acts and/or omissions ‘were in
violation of clearly established West Virginia constitutional, statutory, and legal rights of which
a reasonable person would have known’ fails to satisfy the . . . pleading requirement necessary to
defeat the defense of qualified immunity . . . .” See Hutchison, 198 W.Va. at 149-50, 479 S.E.2d
at 659-60 (1996) (citing Schultea v. Wood, 47 F.3d 1427 (5th Cir.1995) (en banc); Parkulo v.
W.Va. Bd. of Prob. and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996)) (“We believe that in
civil actions where immunities are implicated, the trial court must insist on heightened pleading
by the plaintiff.”).
Petitioner further argues that the circuit court “provided no explanation as to what
constitutes a ‘heightened pleading’ or why the [c]omplaint did not meet this standard.” We note,
however, that this argument ignores the circuit court’s findings below. Specifically, the circuit
3
court found that petitioner was required to plead something more specific than a general
allegation of a violation of a law and failed to do so by not identifying any specific law allegedly
violated. Moreover, petitioner argues that the circuit court failed to comply with the requirements
of Hutchison, wherein we directed as follows:
A plaintiff is not required to anticipate the defense of immunity in his complaint,
Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923-24, 64 L.Ed.2d 572
(1980), and, under the West Virginia Rules of Civil Procedure, the plaintiff is
required to file a reply to a defendant’s answer only if the circuit court exercises
its authority under Rule 7(a) to order one. We believe, in cases of qualified or
statutory immunity, court ordered replies and motions for a more definite
statement under Rule 12(e) can speed the judicial process. Therefore, the trial
court should first demand that a plaintiff file . . . “a short and plain statement of
his complaint, a complaint that rests on more than conclusion alone.” Schultea v.
Wood, 47 F.3d at 1433. Next, the court may, on its own discretion, insist that the
plaintiff file a reply tailored to an answer pleading the defense of statutory or
qualified immunity. The court’s discretion not to order such a reply ought to be
narrow; where the defendant demonstrates that greater detail might assist an early
resolution of the dispute, the order to reply should be made. Of course, if the
individual circumstances of the case indicate that the plaintiff has pleaded his or
her best case, there is no need to order more detailed pleadings. If the
information contained in the pleadings is sufficient to justify the case proceeding
further, the early motion to dismiss should be denied.
198 W.Va. at 150, 479 S.E.2d at 660 (emphasis added). What petitioner fails to acknowledge is
that no more detailed pleadings were required because she clearly pled her best case. In her
response to respondents’ motion to dismiss, petitioner again failed to set forth with sufficient
particularity any specific law that was allegedly violated. Indeed, on appeal to this Court
petitioner still fails to allege a single, specific law that respondents’ allegedly violated. As such,
it is clear that petitioner pled her best case and, accordingly, no more detailed pleadings were
necessary.
For the foregoing reasons, we affirm the Circuit Court of Kanawha County’s May 22,
2017, order granting respondents’ motion to dismiss.
Affirmed.
ISSUED: May 14, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
4