Dale F. v. Robert Peters, Marion County Prosecutors Office

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Dale F.,

Plaintiff Below, Petitioner

FILED

vs.) No. 19-0594 (Marion County 18-C-187) April 6, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

Robert Peters, Marion County OF WEST VIRGINIA

Prosecutors Office,

Defendants Below, Respondents

MEMORANDUM DECISION

Petitioner Dale F., 1 self-represented litigant, appeals the June 10, 2019, order of the

Circuit Court of Marion County dismissing his civil action against Respondents Robert Peters

and Marion County Office of the Prosecuting Attorney. Respondents, by counsel Tiffany R.

Durst and Nathaniel D. Griffith, filed a response in support of the circuit court’s order. Petitioner

filed a reply and a supplemental reply. 2

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

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

of the Rules of Appellate Procedure.

In petitioner’s criminal case, he was indicted in the Circuit Court of Marion County on

multiple sex offenses against his minor daughter, M.F.: (1) two counts of second-degree sexual

1

Due to a need to refer to petitioner’s criminal case, Supreme Court No. 19-0738, in

which he is appealing his convictions for sex offenses against his minor daughter, we will use the

child’s full initials and first names and last initials for petitioner and other family members in this

decision. See In re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va.

24, 435 S.E.2d 162 (1993); State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).

2

By order entered January 2, 2020, this Court granted petitioner leave to file the

supplemental reply.

1

assault; (2) two counts of incest; and (3) two counts of sexual abuse by a parent, guardian,

custodian, or other person of trust. Respondent Peters was the assistant prosecuting attorney

assigned to the criminal case.

On or about November 20, 2018, Respondent Peters and Donald Harris, an investigator

employed by Respondent Marion County Office of the Prosecuting Attorney, interviewed

petitioner’s former brother-in-law, Calvin S., for the purpose of developing prior bad act

evidence for use at any criminal trial pursuant to Rule 404(b) of the West Virginia Rules of

Evidence. According to Mr. Harris, he and Respondent Peters sought to have Calvin S. “verify[ ]

the information [they] had gotten from a reliable witness” that petitioner took inappropriate

photos of petitioner’s sister, Melissa S., when she was a minor. Calvin S. denied knowing

“anything about [petitioner] taking pictures of Melissa [S.]”

On March 18, 2019, the circuit court held a plea hearing in petitioner’s criminal case in

which his minor daughter, M.F., was the victim. At the plea hearing, petitioner entered Kennedy

pleas to one count of incest and one count of first-degree sexual abuse, as a lesser included

offense of second-degree sexual assault, in exchange for the dismissal of the other charges. 3 At a

May 20, 2019, hearing, the circuit court denied petitioner’s motion to withdraw his pleas, but

deferred sentencing so that it could review petitioner’s psychological evaluation report. At a July

22, 2019, hearing, the circuit court denied petitioner’s renewed motion to withdraw his pleas and

sentenced petitioner to five to fifteen years of incarceration for incest and one to five years of

incarceration for first-degree sexual abuse with the terms to be served consecutively. 4 On August

21, 2019, petitioner appealed his convictions, and his appeal is pending in Supreme Court No.

19-0738. 5

Between Calvin S.’s November 20, 2018, interview and the March 18, 2019, plea hearing

in petitioner’s criminal case, petitioner filed the instant civil action in the circuit court against

respondents on December 4, 2018, and then filed an amended complaint on December 21, 2018. 6

3

Relying on North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 167-68, 27

L.Ed.2d 162, 171-72 (1970), this Court held in Syllabus Point 1 of Kennedy v. Frazier, 178 W.

Va. 10, 357 S.E.2d 43 (1987), that “[a]n accused may voluntarily, knowingly and

understandingly consent to the imposition of a prison sentence even though he is unwilling to

admit participation in the crime, if he intelligently concludes that his interests require a guilty

plea and the record supports the conclusion that a jury could convict him.”

4

In denying petitioner’s renewed motion to withdraw his pleas, the circuit court found

that petitioner clearly understood the nature of the plea agreement and was clearly advised of the

rights he would be waiving by pleading guilty.

5

We take judicial notice of the appendix record filed in Supreme Court No. 19-0738.

6

By the March 18, 2019, plea hearing in petitioner’s criminal case, Respondent Peters no

longer worked as an assistant prosecuting attorney, having voluntarily resigned from that

position in December of 2018.

2

In the amended complaint, petitioner alleged that Respondent Peters “acted unethically and

illegally in [an] attempt to convict [petitioner.]” Specifically, petitioner alleged that the only way

Respondent Peters would have known to ask Calvin S. about inappropriate photos petitioner had

allegedly taken of Melissa S. during their youth was if Respondent Peters had illegally accessed

petitioner’s sealed juvenile court file. Petitioner further alleged that Respondent Peters shared

information from petitioner’s sealed juvenile court file with petitioner’s criminal defense

attorney. Petitioner sought $1 million in damages.7

On January 10, 2019, respondents filed a motion to dismiss the instant civil action.

Petitioner filed a response to the motion to dismiss on January 30, 2019. Respondents filed a

reply to petitioner’s response on February 22, 2019. Following a February 27, 2019, hearing on

the motion to dismiss, the circuit court dismissed the instant civil action by order entered on June

10, 2019. 8

Petitioner now appeals the circuit court’s June 10, 2019, order dismissing his civil action.

“Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo.”

Syl. Pt. 1, Roth v. DeFeliceCare, Inc., 226 W. Va. 214, 700 S.E.2d 183 (2010) (quoting Syl. Pt.

2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516

(1995)). “[C]laims of immunities, where ripe for disposition, should be summarily decided

before trial.” Hutchison v. City of Huntington, 198 W. Va. 139, 147, 479 S.E.2d 649, 657 (1996)

(Footnote omitted.). As we explained in Hutchison, “[t]he very heart of the immunity defense is

that it spares the defendant from having to go forward with an inquiry into the merits of the

case.” Id. at 148, 479 S.E.2d at 658. “Prosecutors in West Virginia . . . enjoy absolute immunity

under our common law.” Jarvis v. West Virginia State Police, 227 W. Va. 472, 478 n.5, 711

S.E.2d 542, 548 n.5 (2010) (citing Mooney v. Frazier, 225 W. Va. 358, 370 n.12, 693 S.E.2d

333, 345 n.12 (2010)).

On appeal, petitioner argues that the circuit court erred in dismissing his civil action.

Petitioner concedes that Respondent Marion County Office of the Prosecuting Attorney is

immune from his action, but argues that Respondent Peters is liable in both his official and

individual capacities. Petitioner further argues that Respondent Peters’ alleged actions were

investigatory rather than prosecutorial in nature.

7

Both the complaint and the amended complaint listed petitioner’s sister, Melissa S., as a

plaintiff. Petitioner signed each complaint on behalf of himself and his sister. As a lay person,

petitioner may not represent another person in judicial proceedings. See Shenandoah Sales &

Serv., Inc. v. Assessor of Jefferson County, 228 W. Va. 762, 766, 724 S.E.2d 733, 737 (2012).

While Melissa S. appeared for the February 27, 2019, hearing on respondents’ motion to dismiss,

only petitioner signed the notice of appeal in this Court. Therefore, we find that Melissa S. did

not appeal the circuit court’s June 10, 2019, order and disregard any arguments allegedly raised

on her behalf.

8

While the circuit court dismissed petitioner’s civil action on various grounds, we find

that it is necessary for us to address only the doctrine of prosecutorial immunity as it provides an

absolute bar to the action.

3

In Mooney, we described the scope of prosecutorial immunity:

Regarding common law prosecutorial immunity, the following has been said:

Prosecutors enjoy absolute immunity from civil liability for prosecutorial

functions such as, initiating and pursuing a criminal prosecution, presenting a case

at trial, and other conduct that is intricately associated with the judicial process. . .

. It has been said that absolute prosecutorial immunity cannot be defeated by

showing that the prosecutor acted wrongfully or even maliciously, or because the

criminal defendant ultimately prevailed on appeal or in a habeas corpus

proceeding.

The absolute immunity afforded to prosecutors attaches to the

functions they perform, and not merely to the office. Therefore, it

has been recognized that a prosecutor is entitled only to qualified

immunity when performing actions in an investigatory or

administrative capacity.

Franklin D. Cleckley, et al., Litigation Handbook on West Virginia Rules of Civil

Procedure, § 8(c), at 213 (3d ed. 2008). See Imbler v. Pachtman, 424 U.S. 409, 96

S.Ct. 984, 47 L.Ed.2d 128 (1976) (extending absolute immunity to prosecutors

from civil rights claims); Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606,

125 L.Ed.2d 209 (1993) (state prosecutor denied absolute immunity in suit that

involved job functions that were investigatory rather than prosecutorial in nature

and thus were not performed in the role as advocate for the state).

225 W. Va. at 370 n.12, 693 S.E.2d at 345 n.12. Here, petitioner argues that the development of

Rule 404(b) evidence constitutes an investigatory rather than a prosecutorial function. We find

that petitioner’s argument is without merit. Subject to its limitations, Rule 404(b) permits the

admission of prior bad act evidence in criminal trials. Respondent Peters interviewed Calvin S.

for the purpose of developing such evidence after the initiation of petitioner’s criminal case. As

alleged in petitioner’s amended complaint, Respondent Peters “acted unethically and illegally in

[an] attempt to convict [petitioner.]” (Emphasis added.).

“[A]bsolute prosecutorial immunity cannot be defeated by showing that the prosecutor

acted wrongfully or even maliciously[.]” Id. Given the allegations in the amended complaint,

respondents argue that Respondent Peters is absolutely immune from petitioner’s action. We

agree and conclude that the circuit court properly dismissed petitioner’s civil action due to the

doctrine of prosecutorial immunity.

4

For the foregoing reasons, we affirm the circuit court’s June 10, 2019, order dismissing

his civil action. 9

Affirmed.

ISSUED: April 6, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

9

Seeking to keep his civil action alive, petitioner argues that the circuit court erred in

failing to rule on his motions to add the State of West Virginia and Mr. Harris, the investigator

with whom Respondent Peters interviewed Calvin S., as defendants. Petitioner further argues

that the State was served with the amended complaint and identifies The Honorable Patrick

Morrisey, Attorney General of West Virginia, as the State’s counsel. Based on our review of the

record, we find that the Attorney General was not served with the amended complaint and note

that petitioner does not allege that Mr. Harris was served with the amended complaint.

Moreover, we find that the circuit court’s failure to rule on petitioner’s motions to add the State

of West Virginia and Mr. Harris as defendants did not constitute error as it did not affect the

outcome of this case.

5