Fields v. Mellinger

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term

_____________ FILED

November 18, 2020

No. 20-0183 released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

_____________ SUPREME COURT OF APPEALS

OF WEST VIRGINIA

CODY RYAN FIELDS,

Petitioner

V.

ROSS H. MELLINGER, Individually and in His Capacity as a

Deputy with the Jackson County, West Virginia, Sheriff’s Department;

TONY BOGGS, Individually and in His Capacity as

the Sheriff of Jackson County, West Virginia; and

THE JACKSON COUNTY COMMISSION d/b/a

the JACKSON COUNTY SHERIFF’S DEPARTMENT,

Respondents

________________________________________________

Certified Question from the United States District Court

for the Southern District of West Virginia

The Honorable Thomas E. Johnston, Chief Judge

Civil Action No. 2:19-cv-00493

CERTIFIED QUESTION ANSWERED

________________________________________________

Submitted: October 27, 2020

Filed: November 18, 2020

Lonnie C. Simmons Wendy E. Greve

Luca D. DiPiero Drannon L. Adkins

DiPiero Simmons McGinley & Pullin, Fowler, Flanagan, Brown &

Bastress, PLLC Poe, PLLC

Charleston, West Virginia Charleston, West Virginia

Michael T. Clifford Attorneys for the Respondents

Charleston, West Virginia

Attorneys for the Petitioner

JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICE HUTCHISON concurs and reserves the right to file a concurring opinion.

JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.

SYLLABUS BY THE COURT

1. “‘A de novo standard is applied by this Court in addressing the legal

issues presented by a certified question from a federal district or appellate court.’ Syllabus

Point 1, Light v. Allstate Ins. Co., 203 W. Va. 27, 506 S.E.2d 64 (1998).” Syllabus point

1, Martinez v. Asplundh Tree Expert Co., 239 W. Va. 612, 803 S.E.2d 582 (2017).

2. “Courts are not concerned with the wisdom or expediencies of

constitutional provisions, and the duty of the judiciary is merely to carry out the provisions

of the plain language stated in the constitution. Syllabus point 3, State ex rel. Casey v.

Pauley, 158 W. Va. 298, 210 S.E.2d 649 (1975).

3. West Virginia does not recognize a private right of action for

monetary damages for a violation of Article III, Section 6 of the West Virginia

Constitution.

i

Jenkins, Justice:

The United States District Court for the Southern District of West Virginia

presents the following certified question for resolution by this Court: “Does West Virginia

recognize a private right of action for monetary damages for violations of Article III,

Section 6 of the West Virginia Constitution?” We have considered the parties briefs and

oral arguments, the appendix record submitted, and extensive legal authority on this issue.

We conclude that there is no private right of action for monetary damages for a violation

of Article III, Section 6 of the West Virginia Constitution. Accordingly, we answer the

certified question in the negative.

I.

FACTUAL AND PROCEDURAL HISTORY

On July 2, 2019, Cody Ryan Fields (“Mr. Fields”) filed a complaint in the

United States District Court for the Southern District of West Virginia (“district court”)

against Ross H. Mellinger, individually and in his capacity as a Deputy with the Jackson

County, West Virginia, Sheriff’s Department (“Deputy Mellinger”); Tony Boggs,

individually and in his capacity as the Sheriff of Jackson County, West Virginia; and the

Jackson County Commission d/b/a the Jackson County Sheriff’s Department (“Sheriff’s

Department”) (collectively “the Defendants”). The following state law claims are asserted

by Mr. Fields in his complaint: constitutional tort, for violations of Article III, Sections 6,

10, and 17 of the West Virginia Constitution; negligence in the hiring, retention, and/or

supervision of employees; battery; and outrageous conduct/intentional infliction of mental,

1

physical, and emotional distress. Additionally, the following federal law claims are

asserted in the complaint by Mr. Fields: excessive force under United States Code title 42

section 1983; Monell 1 and supervisory liability under United States Code title 42 section

1983; and unlawful conspiracy under United States Code title 42 sections 1983 & 1985.

In his complaint, Mr. Fields alleged the following facts:

5. On or about the 20th day of September[] 2017,

defendant [Deputy] Mellinger, under the auspices of

executing a search warrant upon the residence of Joseph

Farrel . . . near Ripley, Jackson County, West Virginia,

confronted [Mr. Fields] in a detached garage with the

front bay door open and told [Mr. Fields] to get on the

ground. [Mr. Fields] was standing with his hands in the

air and bending at the waist to get down when [Deputy]

Mellinger, using deadly and excessive force, and not

utilizing lesser means of command such as pepper

spray, viciously struck [Mr. Fields] in the face with the

butt end of a shotgun, all of which was without probable

cause or provocation, and without any resistance

whatsoever, causing facial injuries and knocking out

several of [Mr. Fields’] teeth . . . . Thereafter, [Deputy]

Mellinger told [Mr. Fields] that his teeth needed to

come out anyway.

1

Monell refers to Monell v. New York City Department of Social Services,

436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), which held that

a local government may not be sued under § 1983 for an injury

inflicted solely by its employees or agents. Instead, it is when

execution of a government’s policy or custom, whether made

by its lawmakers or by those whose edicts or acts may fairly be

said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.

Id. at 694, 98 S. Ct. at 2037-38, 56 L. Ed. 2d 611.

2

6. At the time of the attack by [Deputy] Mellinger, [Mr.

Fields] was not under arrest, having committed no

crime, he was being compliant, he was not attempting

to flee, he was not attempting to assault or strike

[Deputy] Mellinger[,] and he was not threatening to do

so.

7. At the time [of the attack, Deputy] Mellinger had no

reason to believe that [Mr. Fields] had committed or was

committing any crime, in that [Mr. Fields] was situate

in an open garage, detached from the residence [that]

the defendant had a warrant to search and, apparently,

did not search at that date and time. [Deputy Mellinger]

had no reason to believe [Mr. Fields] was in possession

of any weapons and never inquired of [Mr. Fields]

whether he was in possession of any weapons prior to

attacking him. Indeed [Deputy] Mellinger never

inquired of [Mr. Fields] who he was and what he was

doing in the garage.

According to the complaint, Mr. Fields was then placed under arrest for obstruction and

simple possession. Mr. Fields repeatedly attempted to have a suppression hearing related

to the charges, but the State’s witnesses were continually unavailable. Accordingly, the

charges were dismissed by the Jackson County Magistrate Court.

The Defendants ultimately filed a partial motion to dismiss, which, relevant

to this certified question, sought dismissal of Mr. Fields’ claim for relief under the West

Virginia Constitution, asserting that state constitutional claims are not supported by the

law. Following Mr. Fields’ response to the motion, the Defendants’ reply, and a telephonic

conference, the district court took the Defendants’ partial motion to dismiss under

advisement and directed the parties to submit a proposal for certified question. By “Order

of Certification” filed on March 4, 2020, the district court submitted its certified question

3

to this Court. We accepted the certified question and placed this matter on the docket for

argument under Rule 20 of the West Virginia Rules of Appellate Procedure.

II.

STANDARD OF REVIEW

We exercise plenary review of a question certified by a federal district court:

“‘A de novo standard is applied by this Court in addressing the legal issues presented by a

certified question from a federal district or appellate court.’ Syllabus Point 1, Light v.

Allstate Ins. Co., 203 W. Va. 27, 506 S.E.2d 64 (1998).” Syl. pt. 1, Martinez v. Asplundh

Tree Expert Co., 239 W. Va. 612, 803 S.E.2d 582 (2017). See also Syl. pt. 1, Bower v.

Westinghouse Elec. Corp., 206 W. Va. 133, 522 S.E.2d 424 (1999) (“This Court undertakes

plenary review of legal issues presented by certified question from a federal district or

appellate court.”). Applying this standard, we proceed to answer the question herein

certified.

III.

DISCUSSION

In this proceeding, we are presented with the following question certified by

the district court:

Does West Virginia recognize a private right of action for

monetary damages for violations of Article III, Section 6 of the

West Virginia Constitution?

4

Because our answer to this question requires constitutional analysis, we begin by reviewing

this Court’s role as it relates to matters of constitutional interpretation.

This Court previously has recognized that

[a] constitution is the fundamental law by which all

people of the state are governed. It is the very genesis of

government. Unlike ordinary legislation, a constitution is

enacted by the people themselves in their sovereign capacity

and is therefore the paramount law. This basic organic law can

be altered or rewritten only in the manner provided for therein.

State ex rel. Smith v. Gore, 150 W. Va. 71, 77, 143 S.E.2d 791, 795 (1965). For this reason,

“[c]ourts are not concerned with the wisdom or expediencies of constitutional provisions,

and the duty of the judiciary is merely to carry out the provisions of the plain language

stated in the constitution.” Syl. pt. 3, State ex rel. Casey v. Pauley, 158 W. Va. 298, 210

S.E.2d 649 (1975). See also Syl. pt. 3, Diamond v. Parkersburg-Aetna Corp., 146 W. Va.

543, 122 S.E.2d 436 (1961) (“The object of construction, as applied to a written

constitution, is to give effect to the intent of the people in adopting it.”). Thus, as we

recently acknowledged, the Court bears the “‘task of interpreting the Constitution and the

laws of this State as they exist.’” State v. Smith, ___ W. Va. ___, ___, 844 S.E.2d 711, 719

(2020) (quoting W. Va. Bd. of Educ. v. Bd. of Educ. of the Cty. of Nicholas, 239 W. Va.

705, 721, 806 S.E.2d 136, 152 (2017) (additional quotations and citation omitted)). In

other words,

[a]lthough this Court is vested with the authority “to construe,

interpret and apply provisions of the Constitution, . . . [we]

may not add to, distort or ignore the plain mandates thereof.”

State ex rel. Bagley v. Blankenship, 161 W. Va. 630, 643, 246

5

S.E.2d 99, 107 (1978). Thus, “[i]f a constitutional provision is

clear in its terms, and the intention of the electorate is clearly

embraced in the language of the provision itself, this Court

must apply and not interpret the provision.” Syl. pt. 1, State ex

rel. Trent v. Sims, 138 W. Va. 244, 77 S.E.2d 122 (1953). On

the other hand, “if the language of the constitutional provision

is ambiguous, then the ordinary principles employed in

statutory construction must be applied to ascertain such intent.”

State ex rel. Forbes v. Caperton, 198 W. Va. 474, 480, 481

S.E.2d 780, 786 (1996) (internal quotations and citations

omitted).

State ex rel. Morrisey v. W. Va. Office of Disc. Counsel, 234 W. Va. 238, 255, 764 S.E.2d

769, 786 (2014). See also Syl. pt. 1, Winkler v. State Sch. Bldg. Auth., 189 W. Va. 748,

434 S.E.2d 420 (1993) (“Questions of constitutional construction are in the main governed

by the same general rules applied in statutory construction.”). Even where a provision is

found to be ambiguous, it “requires interpretation consistent with the intent of both the

drafters and the electorate.” State ex rel. Brotherton v. Blankenship, 157 W. Va. 100, 127,

207 S.E.2d 421, 436-37 (1973) (Neely, J., dissenting).

Turning to the question at hand, “[a]s in every case involving the application

or interpretation of a constitutional provision, analysis must begin with the language of the

constitutional provision itself.” State ex rel. Mountaineer Park, Inc. v. Polan, 190 W. Va.

276, 283, 438 S.E.2d 308, 315 (1993). Under Article III, Section 6 of the West Virginia

Constitution,

[t]he rights of the citizens to be secure in their houses,

persons, papers and effects, against unreasonable searches and

seizures, shall not be violated. No warrant shall issue except

upon probable cause, supported by oath or affirmation,

6

particularly describing the place to be searched, or the person

or thing to be seized.

Mr. Fields seeks monetary compensation under this provision for personal injuries

allegedly resulting from the use of excessive force by officers of the Sheriff’s Department.

Patently absent from this provision is any allowance for a private right of action for

monetary damages. Thus, we must determine whether a private right of action corresponds

with the intent of the drafters and the electorate of our constitution.

Mr. Fields observes that, in two other contexts, this Court has acknowledged

a private cause of action for damages arising from a constitutional violation. He first cites

to this Court’s opinion in Fox v. Baltimore & Ohio R.R. Co., 34 W. Va. 466, 12 S.E. 757

(1890), in which it was held that,

[i]n an action brought to recover damages under section

9 of Article III of the constitution, as compensation for

permanent injury to real estate by the construction of a railroad

upon a street adjacent to such property, it is proper for the

owner to bring an action for trespass on the case, and he may

count for permanent damages and recover the same according

to the evidence, although, when the injury occurred, he was not

in the actual occupancy of the property, but was in constructive

possession of the same through his tenant under a lease.

Syl. pt. 1, id. The Fox Court, in turn, relied upon the case of Johnson v. City of

Parkersburg, 16 W. Va. 402 (1880), in which the Court held that,

[w]hen the Constitution forbids a damage to private

property and points out no remedy, and no statute gives a

remedy for the invasion of the right of property thus secured,

the common law, which gives a remedy for every wrong, will

furnish the appropriate action for the redress of such

grievances.

7

Syl. pt. 3, id. (second emphasis added). Notably, unlike Article III, Section 6, which is at

issue herein, Article III, Section 9, which the Court addressed in its prior holdings,

guarantees “just compensation”:

“Private property shall not be damaged or taken for public use

without just compensation; nor shall the same be taken by any

company incorporated for the purpose of internal improvement

until just compensation shall have been paid or secured to be

paid to the owners; and, when private property shall be taken

or damaged for public use or for the use of such corporations,

the compensation to the owner shall be ascertained in such

manner as may be prescribed by general law.”

Fox, 34 W. Va. at 470, 12 S.E. at 759 (quoting W. Va. Const. art. III, § 9). Additionally,

under the holding in Johnson, a remedy will be judicially created only where “no statute

gives a remedy for the invasion of the right.” Syl. pt. 3, in part, Johnson, 16 W. Va. 402.

As we will explain in more detail below, alternate remedies for Mr. Fields’ alleged injuries

are available. Accordingly, we find this line of cases does not counsel us to create a private

cause of action for a violation of Article III, Section 6 of the West Virginia Constitution.

Mr. Fields additionally points to a second occasion when this Court

acknowledged a private cause of action for a constitutional violation. See Hutchison v.

City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996). Hutchison addressed a

violation of the Due Process Clause of Article III, Section 10 of the West Virginia

Constitution, and held:

Unless barred by one of the recognized statutory,

constitutional or common law immunities, a private cause of

action exists where a municipality or local governmental unit

causes injury by denying that person rights that are protected

8

by the Due Process Clause embodied within Article 3, § 10 of

the West Virginia Constitution.

Syl. pt. 2, Hutchison, 198 W. Va. 139, 479 S.E.2d 649. In reaching this conclusion, the

Hutchison Court provided no analysis; instead, the Court merely observed that “[t]here is

no dispute among the parties that a private cause of action exists where state government,

or its entities, cause injury to a citizen by denying due process. To suggest otherwise,

would make our constitutional guarantees of due process an empty illusion.” Id. at 150,

479 S.E.2d at 660. The Court then found the plaintiff’s constitutional claim was barred by

statutory immunity. Id. Thus, we find little guidance from the Hutchison opinion to aid

us in analyzing the certified question. 2

In posing its certified question to this Court, the district court expressly

requested clarification of this Court’s decision in Harrah v. Leverette, 165 W. Va. 665, 271

S.E.2d 322 (1980), superseded by statute on other grounds as recognized by W. Va. Reg’l

Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 515 n.30, 766 S.E.2d 751, 774 n.30

(2014), as the United States District Courts, in endeavoring to interpret West Virginia law

on the issue of whether a private cause of action for damages would be recognized for a

2

Because Hutchison addresses violations of the due process clause and the

instant matter addresses unreasonable search and seizure, we do not, by our decision today,

disturb the Hutchison holding. However, as reflected in our ultimate decision in this case,

we decline Mr. Fields’ invitation to extend the Hutchison holding to claims for violations

of Article III, Section 6 of the West Virginia Constitution.

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constitutional violation, have sometimes relied upon Harrah. 3 Harrah involved an original

jurisdiction proceeding filed by inmates incarcerated at Huttonsville Correctional Center

3

We note that the United States District Courts for the two West Virginia

districts have addressed whether private causes of action for monetary damages would be

recognized in West Virginia and are split in their answers to this question. Compare Nutter

v. Mellinger, No. 2:19-CV-00787, 2020 WL 401790, at *6 (S.D.W. Va. Jan. 23, 2020)

(explaining that “[i]t is true though that this court has previously found that Article III

provisions of the West Virginia Constitution do not provide a private cause of action for

damages, with the exception of § 10. . . . I agree and find that a private plaintiff cannot

bring a claim for damages under Article III, § 6 of the West Virginia Constitution when

there is not an independent statute authorizing such a cause of action.”), and Howard v.

Ballard, No. 2:13-CV-11006, 2015 WL 1481836, at *4 (S.D.W. Va. Mar. 31, 2015)

(commenting that “a violation of Article III, § 5 of the West Virginia Constitution does not

independently give rise to claims for money damages”), and McMillion-Tolliver v.

Kowalski, No. 2:13-CV-29533, 2014 WL 1329790, at *2 (S.D.W. Va. Apr. 1, 2014)

(concluding that “[t]he Harrah court did not include a cause of action under the state

constitution for money damages among the remedies it listed. Without an independent

statute authorizing money damages for violations of the West Virginia Constitution, the

plaintiff’s claim must fail.”), and Smoot v. Green, No. CIV.A. 2:13-10148, 2013 WL

5918753, at *4-5 (S.D.W. Va. Nov. 1, 2013) (discussing claims against a state agency and

supervisory defendants, as opposed to individuals, and finding that “[i]nasmuch as the

decision in Harrah does not contemplate a damages award for Article III violations in this

setting, it is ORDERED that, to the extent the claims under Article III seek monetary relief,

they be, and hereby are, dismissed”), with Barcus v. Austin, No. 1:17CV122, 2018 WL

4183213, at *5 (N.D.W. Va. Aug. 31, 2018) (quoting Syllabus point 2 of Hutchison and

pointing out that “[t]he parties do not dispute that West Virginia law recognizes a private

cause of action, analogous to one arising under § 1983, for state constitutional violations”),

and Spry v. W. Va., No. 2:16-CV-01785, 2017 WL 440733, at *9 (S.D.W. Va. Feb. 1, 2017)

(noting the dispute among federal district courts in West Virginia as to “[w]hether the West

Virginia Constitution gives rise to a private right of action for money damages” and

reasoning that, “[g]iven its ruling in Hutchison, the Court suspects that the [West Virginia

Supreme Court of Appeals] would recognize a cause of action for money damages for the

violation of other Article III rights”), and Harper v. C.O. Joseph Barbagallo, No. 2:14-

CV-07529, 2016 WL 5419442, at *13 (S.D.W. Va. Sept. 27, 2016) (remarking that “[t]he

Court is unconvinced that the Supreme Court of Appeals of West Virginia would refuse to

recognize a private right of action under Section 5 of Article III when it has recognized

such a right with regard to Section 10”), and Ray v. Cutlip, No. 2:13-CV-75, 2014 WL

858736, at *3 n.1 (N.D.W. Va. Mar. 5, 2014) (mentioning in a footnote that “West Virginia

recognizes a private right of action for violations of the West Virginia Constitution,” and

quoting Hutchison).

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seeking unconditional release from confinement based on cruel and unusual punishment.

The Harrah Court held that “Article III, § 5 of the West Virginia Constitution, prohibits

state prison administrators and correctional officers from using physical force on inmates,

absent imminent and present danger of harm to others, themselves or state property.” Syl.

pt. 3, Harrah, 165 W. Va. 665, 271 S.E.2d 322. Additionally, the Court held that

[a] person brutalized by state agents while in jail or

prison may be entitled to:

(a) A reduction in the extent of his confinement or his

time of confinement;

(b) Injunctive relief, and subsequent enforcement by

contempt proceedings, including but not limited to, prohibiting

the use of physical force as punishment, requiring

psychological testing of guards, and ordering guards

discharged if at a hearing they are proved to have abused

inmates;

(c) A federal cause of action authorized by 42 U.S.C.

§ 1983; and

(d) A civil action in tort.

Syl. pt. 4, Harrah, 165 W. Va. 665, 271 S.E.2d 322. Several district court opinions have

interpreted Harrah as not allowing a cause of action for money damages for violations of

Article III of the West Virginia Constitution other than the Section 10 right of recovery

recognized by Hutchison. See, e.g., Billiter v. Jones, No. CV 3:19-0288, 2020 WL 118595,

at *5 (S.D.W. Va. Jan. 9, 2020) (determining that money damages were not available for

claims under Article III, Sections 7 and 16 of the West Virginia Constitution, but observing

that “[t]he Supreme Court of Appeals did, however, authorize injunctive relief in Harrah

v. Leverette for an article III, section 5 claim” (emphasis added)); Murray v. Matheney, No.

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2:13-CV-15798, 2017 WL 4849113, at *8 (S.D.W. Va. Oct. 26, 2017) (granting summary

judgment to defendants as to plaintiff’s claims for money damages for violations of Article

III, Section 5 of the West Virginia Constitution, because “monetary damages under the

West Virginia Constitution [are] outside the scope of those contemplated by the Harrah

court”); McMillion-Tolliver v. Kowalski, No. 2:13-CV-29533, 2014 WL 1329790, at *2

(S.D.W. Va. Apr. 1, 2014) (concluding that “[t]he Harrah court did not include a cause of

action under the state constitution for money damages among the remedies it listed”).

Mr. Fields contends that cases such as these have misinterpreted the Harrah

decision. He focuses on remedy (d) in Syllabus point 4, which provides that a civil action

in tort is among the remedies available to a person who has been brutalized by state agents

while in jail or prison, and interprets it as creating an implied cause of action for damages

for a violation of Article III, Section 5 of the West Virginia Constitution. We disagree.

There simply is no language in Harrah adopting an implied cause of action for a

constitutional violation. Rather, it is explained in the body of the opinion that “[a] single

spontaneous attack by a guard may simply be a common law tort[.]” Harrah, 165 W. Va.

at 677, 271 S.E.2d at 330. Thus, remedy (d) is merely acknowledging that, under the proper

circumstances, a brutalized inmate might have a common law tort cause of action.

Therefore, we find that the district courts that have concluded “[t]he Harrah court did not

include a cause of action under the state constitution for money damages among the

remedies it listed” have properly interpreted this case. McMillion-Tolliver, 2014 WL

1329790, at *2.

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Having found no grounds to find the drafters and the electorate intended to

create a cause of action for monetary damages for a violation of Article III, Section 6, from

existing West Virginia precedent, we next consider how other courts have addressed this

issue.

The leading case by the United States Supreme Court that recognized a

constitutional tort 4 is Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). In Bivens, the Court

recognized that a violation of the Fourth Amendment 5 to the United States Constitution

“by a federal agent acting under color of his authority gives rise to a cause of action for

damages consequent upon his unconstitutional conduct.” Id. at 389, 91 S. Ct. at 2001, 29

L. Ed. 2d 619. The Court made this finding despite the fact that “the Fourth Amendment

does not in so many words provide for its enforcement by an award of money damages for

4

“Constitutional torts, as the name implies, seek recovery of money damages

for constitutional wrongs. Most commonly, these actions are brought under 42 U.S.C.

§ 1983[.]” W. Va. Lottery v. A-1 Amusement, Inc., 240 W. Va. 89, 103, 807 S.E.2d 760,

774 (2017).

Similar to Article III, Section 6 of the West Virginia Constitution, the

5

Fourth Amendment to the United States Constitution provides that

[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the

persons or things to be seized.

13

the consequences of its violation.” Bivens, 403 U.S. at 396, 91 S. Ct. at 2004, 29 L. Ed. 2d

619. In analyzing whether to adopt an implied cause of action, the Bivens Court

acknowledged the well-settled principle that, “‘where legal rights have been invaded, and

a federal statute provides for a general right to sue for such invasion, federal courts may

use any available remedy to make good the wrong done.’” Id. (quoting Bell v. Hood, 327

U.S. 678, 684, 66 S. Ct. 773, 777, 90 L. Ed. 939 (1946)). However, even in the absence of

a federal statute that provided a general right to sue under the circumstances presented in

Bivens, 6 the Court found that the case “involve[d] no special factors counseling hesitation

in the absence of affirmative action by Congress.” Id. at 396, 91 S. Ct. at 2005, 29 L. Ed. 2d

619. Also significant to the decision in Bivens was the lack of any alternate remedy for the

plaintiff. See id. at 410, 91 S. Ct. at 2011-12, 29 L. Ed. 2d 619 (Harlan, J., concurring)

(“It will be a rare case indeed in which an individual in Bivens’ position will be able to

obviate the harm by securing injunctive relief from any court. . . . For people in Bivens’

shoes, it is damages or nothing.”). 7

6

See, e.g., Ziglar v. Abbasi, ___ U.S. ___, ___, 137 S. Ct. 1843, 1854, 198

L. Ed. 2d 290 (2017) (discussing Bivens and observing that “[t]he Court held that, even

absent statutory authorization, it would enforce a damages remedy to compensate persons

injured by federal officers who violated the prohibition against unreasonable search and

seizures”).

In Ziglar, ___ U.S. at ___, 137 S. Ct. at 1854, 198 L. Ed. 2d 290, the United

7

States Supreme Court explained that,

[i]n 1871, Congress passed a statute that was later codified at

Rev. Stat. § 1979, 42 U.S.C. § 1983. It entitles an injured

person to money damages if a state official violates his or her

constitutional rights. Congress did not create an analogous

statute for federal officials. Indeed, in the 100 years leading up

14

In the time since the Bivens decision was handed down, however, the Court

has been reluctant to extend its holding, and has expressed that,

[g]iven the notable change in the Court’s approach to

recognizing implied causes of action, however, the Court has

made clear that expanding the Bivens remedy is now a

“disfavored” judicial activity. [Ashcroft v. Iqbal, 556 U.S. 662,

675, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009)]. This is

in accord with the Court’s observation that it has “consistently

refused to extend Bivens to any new context or new category

of defendants.” Correctional Services Corp. v. Malesko, 534

U.S. 61, 68, 122 S. Ct. 515, [520,] 151 L. Ed. 2d 456 (2001).

Indeed, the Court has refused to do so for the past 30 years.

Ziglar v. Abbasi, ___ U.S. ___, ___, 137 S. Ct. 1843, 1857, 198 L. Ed. 2d 290 (2017). 8 To

this end, the Ziglar Court observed that

to Bivens, Congress did not provide a specific damages remedy

for plaintiffs whose constitutional rights were violated by

agents of the Federal Government.

8

The Ziglar Court explained that,

[i]n the decade that followed [Bivens], the Court

recognized what has come to be called an implied cause of

action in two cases involving other constitutional violations. In

Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d

846 (1979), an administrative assistant sued a Congressman for

firing her because she was a woman. The Court held that the

Fifth Amendment Due Process Clause gave her a damages

remedy for gender discrimination. Id., at 248-249, 99 S. Ct.

2264. And in Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468,

64 L. Ed. 2d 15 (1980), a prisoner’s estate sued federal jailers

for failing to treat the prisoner’s asthma. The Court held that

the Eighth Amendment Cruel and Unusual Punishments

Clause gave him a damages remedy for failure to provide

adequate medical treatment. See id., at 19, 100 S. Ct. 1468.

These three cases—Bivens, Davis, and Carlson—represent the

only instances in which the Court has approved of an implied

damages remedy under the Constitution itself.

15

the Court declined to create an implied damages remedy in the

following cases: a First Amendment suit against a federal

employer, Bush v. Lucas, 462 U.S. 367, 390, 103 S. Ct. 2404,

76 L. Ed. 2d 648 (1983); a race-discrimination suit against

military officers, Chappell v. Wallace, 462 U.S. 296, 297, 304-

305, 103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983); a substantive

due process suit against military officers, United States v.

Stanley, 483 U.S. 669, 671-672, 683–684, 107 S. Ct. 3054, 97

L. Ed. 2d 550 (1987); a procedural due process suit against

Social Security officials, Schweiker v. Chilicky, 487 U.S. 412,

414, 108 S. Ct. 2460, 101 L. Ed. 2d 370 (1988); a procedural

due process suit against a federal agency for wrongful

termination, FDIC v. Meyer, 510 U.S. 471, 473-474, 114 S. Ct.

996, 127 L. Ed. 2d 308 (1994); an Eighth Amendment suit

against a private prison operator, [Correctional Services Corp.

v. Malesko, 534 U.S. 61, 63, 122 S. Ct. 515, 517, 151 L. Ed. 2d

456]; a due process suit against officials from the Bureau of

Land Management, Wilkie v. Robbins, 551 U.S. 537, 547-548,

562, 127 S. Ct. 2588, 168 L. Ed. 2d 389 (2007); and an Eighth

Amendment suit against prison guards at a private prison,

Minneci v. Pollard, 565 U.S. 118, 120, 132 S. Ct. 617, 181

L. Ed. 2d 606 (2012).

Ziglar, ___ U.S. at ___, 137 S. Ct. at 1857, 198 L. Ed. 2d 290. In Wilkie, 551 U.S. 537,

127 S. Ct. 2588, 168 L. Ed. 2d 389, the Court set out a two-part analysis for determining

the availability of a Bivens type action:

our consideration of a Bivens request follows a familiar

sequence, and on the assumption that a constitutionally

recognized interest is adversely affected by the actions of

federal employees, the decision whether to recognize a Bivens

remedy may require two steps. In the first place, there is the

question whether any alternative, existing process for

protecting the interest amounts to a convincing reason for the

Judicial Branch to refrain from providing a new and

freestanding remedy in damages. Bush [v. Lucas, 462 U.S.

367, 378, 103 S. Ct. 2404, 2411, 76 L. Ed. 2d 648 (1983)]. But

even in the absence of an alternative, a Bivens remedy is a

Ziglar, ___ U.S. at ___, 137 S. Ct. at 1854-55, 198 L. Ed. 2d 290.

16

subject of judgment: “the federal courts must make the kind of

remedial determination that is appropriate for a common-law

tribunal, paying particular heed, however, to any special

factors counselling hesitation before authorizing a new kind of

federal litigation.” Bush, supra, at 378, 103 S. Ct. [at 2411, 76

L. Ed. 2d 648].

Wilkie, 551 U.S. at 550, 127 S. Ct. at 2598, 168 L. Ed. 2d 389.

Relying on the Supreme Court’s change in approach to recognizing an

implied cause of action for monetary damages based upon a constitutional violation,

numerous state courts have declined to adopt such a cause of action. 9 And, even though

state courts have utilized somewhat varying approaches to address this issue, the existence

of alternative remedies frequently is the deciding factor. 10 See, e.g., State, Dep’t of Corr.

v. Heisey, 271 P.3d 1082, 1098 (Alaska 2012) (commenting that “the availability of an

alternative remedy is dispositive on the issue of a Bivens-type remedy”); Bd. of Cty.

Comm’rs of Douglas Cty. v. Sundheim, 926 P.2d 545, 553 (Colo. 1996) (“While it may be

appropriate to recognize an implied state constitutional cause of action when there is no

other adequate remedy, we agree . . . that where other adequate remedies exist, no implied

9

The states are roughly split on recognizing a Bivens-type action for

monetary damages resulting from the violation of a constitutional right. See Jennifer

Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses

§ 7-07, at 7-20 (4th ed 2006) (“State courts are about evenly divided whether state law

should ever recognize an implied cause of action for damages directly under a state

constitutional guarantee.”).

10

This same principle has been recognized in federal courts. See Ziglar, ___

U.S. at ___, 137 S. Ct. at 1865, 198 L. Ed. 2d 290 (“[T]he existence of alternative remedies

usually precludes a court from authorizing a Bivens action.”); Bowman v. Sawyer, No. 19-

CV-1411-WJM-KMT, 2020 WL 6390992, at *4 (D. Colo. Nov. 2, 2020) (same).

17

remedy is necessary.”); Kelley Prop. Dev., Inc. v. Town of Lebanon, 627 A.2d 909, 922

(Conn. 1993) (observing that “[t]he several sister jurisdictions that have addressed the issue

of whether to recognize a state Bivens action have pursued varying methods of analysis,

with varying results. In a significant number of cases, however, the focus has been on the

presence or absence of an existing alternative remedy, either by way of statute or under the

common law, to provide some measure of relief for the injured party.”); St. Luke Hosp.,

Inc. v. Straub, 354 S.W.3d 529, 537 (Ky. 2011) (declining to provide money damages for

due process violations under state constitution because “adequate alternative remedies

exist, as evidenced by the fact that Straub’s complaint alleged four alternative theories of

recovery against all the defendants.”); Provens v. Stark Cty. Bd. of Mental Retardation &

Dev. Disabilities, 594 N.E.2d 959, 965-66 (Ohio 1992) (holding that “public employees do

not have a private cause of civil action against their employer to redress alleged violations

by their employer of policies embodied in the Ohio Constitution when it is determined that

there are other reasonably satisfactory remedies provided by statutory enactment and

administrative process.”).

In Straub, the Supreme Court of Kentucky observed that,

[i]n Bivens, the Supreme Court originally considered

“alternative remedies” to be those instance[s] in which

Congress provided an alternative remedy. After Supreme

Court decisions in Correctional Services Corp. v. Malesko, 534

U.S. 61, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001), and Wilkie,

any alternative process that contains a “convincing reason” to

refrain from recognizing a new cause of action can preclude a

Bivens action.

18

Straub, 354 S.W.3d at 538 n.40. The Straub Court then reasoned that,

[i]n the present matter, this opinion notes the

availability of other remedies for the alleged violation of

Straub’s rights under the Kentucky Constitution—traditional

tort actions. Based on the United States Supreme Court’s

narrowing acceptance of Bivens actions since 1980 and our

application of the Bivens two-step inquiry to the facts before

us, we reject Straub’s alternative request to recognize a new

tort cause of action under Bivens.

Straub, 354 S.W.3d at 538. Although the Straub Court stated that it applied the Bivens

two-step inquiry in reaching its conclusion, the court did not set out its findings with respect

to whether special factors existed to counsel hesitation against implying a Bivens cause of

action, apparently finding the presence of adequate alternative remedies to be sufficient

justification.

Similarly, in Provens, 594 N.E.2d 959, the Supreme Court of Ohio addressed

whether a teacher employed by the state had a private cause of action for violations of the

Ohio Constitution. The plaintiff in Provens failed to identify the constitutional rights

allegedly violated, but based upon her allegations, the Ohio court inferred that she had

claimed a violation of her right to free speech under Section 11, Article I of the Ohio

Constitution. Id. at 961. The court explained that, “[e]ven though this court is empowered

to grant relief not expressly provided by the legislature, and may grant relief by creating a

new remedy, we shall refrain from doing so where other statutory provisions and

administrative procedures provide meaningful remedies.” Id. at 961-62. In response to the

plaintiff’s argument that the alternative remedies available were not “adequate and

19

meaningful,” the Provens Court found otherwise. Id. at 963. Noting that alternate

remedies were available through the Ohio Civil Rights Commission and through a

grievance process that had been negotiated by plaintiff’s employee bargaining

organization, the Provens Court explained that,

[w]hile the remedies provided the plaintiff here through

the administrative process of a hearing before the [Civil Rights

Commission] and through the arbitration process under the

collective bargaining agreement do vary from the remedies that

might be available through a civil proceeding, such difference

shall not be controlling where, in the totality, it may be

concluded that the public employee has been provided

sufficiently fair and comprehensive remedies. In [Bush v.

Lucas, 462 U.S. 367, 103 S. Ct. 2404, 76 L. Ed. 2d 648

(1983)], the United States Supreme Court clearly evidenced

that alternative avenues providing a less than complete remedy

for the wrong suffered were not sufficient to warrant the

recognition of a cause of action for damages arising from a

constitutional violation. 462 U.S. at 388, 103 S. Ct. at 2417,

76 L. Ed. 2d at 664.

Provens, 594 N.E.2d at 965. See also Heisey, 271 P.3d at 1096-98 (declaring that “a litigant

must establish two requirements before we will consider a possible Bivens-type claim: that

‘alternative remedies’ do not exist; and that the constitutional violation is ‘flagrant’”;

finding that 42 U.S.C. § 1983 provided an alternate remedy; and concluding that “[e]ven if

Heisey may no longer bring a § 1983 claim, an ‘alternative remedy’ existed for Bivens

purposes” (quoting Adkins v. Stansel, 204 P.3d 1031, 1034 (Alaska 2009)); Giraldo v.

Dep’t of Corr. & Rehab., 85 Cal. Rptr. 3d 371, 390 (Cal. Dist. Ct. App. 2008) (declining

to recognize a constitutional tort for violation of the cruel or unusual punishment clause of

the California Constitution, in part, because “there are adequate alternative remedies

available for a claim such as that asserted by plaintiff here. First, we have concluded that

20

California law imposes on at least some prison personnel a duty to protect prisoners from

foreseeable harm caused by other inmates, breach of which could give rise to a claim for

negligence. Additionally, and as defendants point out, plaintiff had available a claim

pursuant to 42 U.S.C. § 1983 for violation of the Eighth Amendment to the federal

Constitution.”); Kelley Prop. Dev., Inc., 627 A.2d at 922 (declining to “construe our state

constitution to provide a basis for the recognition of a private damages action for injuries

for which the legislature has provided a reasonably adequate statutory remedy”); Shields

v. Gerhart, 658 A.2d 924, 934 (Vt. 1995) (“We agree that it may be appropriate to imply a

monetary damages remedy to enforce constitutional rights where the Legislature has

fashioned no other adequate remedial scheme. Where the Legislature has provided a

remedy, although it may not be as effective for the plaintiff as money damages, we will

ordinarily defer to the statutory remedy and refuse to supplement it.”).

Clearly, reasonable alternative remedies are available for a violation of

Article III, Section 6 of the West Virginia Constitution. This is evidenced in the instant

matter by the fact that Mr. Fields has asserted state law claims for negligence in the hiring,

retention, and/or supervision of employees; battery; and outrageous conduct/intentional

infliction of mental, physical, and emotional distress. He also has asserted federal claims

for excessive force under United States Code title 42 section 1983; a Monell 11 claim and

11

See supra note 1 for an explanation of a Monell claim.

21

supervisory liability under United States Code title 42 section 1983; and unlawful

conspiracy under United States Code title 42 sections 1983 & 1985.

Based upon the foregoing discussion, and because alternate remedies are

available for a violation of Article III, Section 6 of the West Virginia Constitution, we now

hold that West Virginia does not recognize a private right of action for monetary damages

for a violation of Article III, Section 6 of the West Virginia Constitution. 12 Applying this

holding to the claims asserted by Mr. Fields, he cannot assert a private action for monetary

damages based on a violation of Article III, Section 6 of the West Virginia Constitution

because no such cause of action is recognized in this state.

12

Mr. Fields additionally encourages this Court to conclude that a damages

remedy is available for a violation of Article III, Section 6 of the West Virginia Constitution

based upon the Restatement (Second) of Torts Section 874A (1979), which provides that,

[w]hen a legislative provision protects a class of persons by

proscribing or requiring certain conduct but does not provide a

civil remedy for the violation, the court may, if it determines

that the remedy is appropriate in furtherance of the purpose of

the legislation and needed to assure the effectiveness of the

provision, accord to an injured member of the class a right of

action, using a suitable existing tort action or a new cause of

action analogous to an existing tort action.

According to comment a to this section, “[a]s used in this Section, the term ‘legislative

provision’ includes . . . constitutional provisions.” Given our analysis in this certified

question action, including our consideration of United States Supreme Court precedent, we

decline to address Section 874A of the Restatement (Second) of Torts in our resolution of

this case.

22

IV.

CONCLUSION

Based upon the foregoing analysis, we answer the question certified by the

United States District Court for the Southern District of West Virginia in the negative as

follows:

Question: “Does West Virginia recognize a private right of action for

monetary damages for violations of Article III, Section 6 of the West Virginia

Constitution?”

Answer: West Virginia does not recognize a private right of action for

monetary damages for a violation of Article III, Section 6 of the West Virginia

Constitution.

Certified Question Answered.

23