WV Regional Jail and Correctional Facility Authority v. The Estate of COdy Lawrence Grove

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term

_____________ FILED

November 20, 2020

released at 3:00 p.m.

No. 18-1076 EDYTHE NASH GAISER, CLERK

_____________ SUPREME COURT OF APPEALS

OF WEST VIRGINIA

THE WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY

AUTHORITY,

Defendant Below, Petitioner

V.

THE ESTATE OF CODY LAWRENCE GROVE,

Plaintiff Below, Respondent

________________________________________________

AND

_____________

No. 18-1083

_____________

JOSHUA DAVID ZOMBRO,

Defendant Below, Petitioner

V.

THE ESTATE OF CODY LAWRENCE GROVE,

Plaintiff Below, Respondent

________________________________________________

Appeals from the Circuit Court of Berkeley County

The Honorable Laura V. Faircloth, Judge

Civil Action No. 17-C-529

REVERSED AND REMANDED WITH INSTRUCTIONS

________________________________________________

Submitted: September 16, 2020

Filed: November 20, 2020

Matthew R. Whitler Paul G. Taylor

Anthony J. Delligatti Martinsburg, West Virginia

Pullin, Fowler, Flanagan, Brown Attorney for the Estate of

& Poe, PLLC Cody Lawrence Grove

Martinsburg, West Virginia

Attorneys for the West Virginia

Regional Jail and Correctional Facility

Authority

James W. Marshall, III

Bailey & Wyant, PLLC

Martinsburg, West Virginia

Michael W. Taylor

Bailey & Wyant, PLLC

Charleston, West Virginia

Attorneys for Joshua David Zombro

JUSTICE JENKINS delivered the Opinion of the Court.

2

SYLLABUS BY THE COURT

1. “A circuit court’s denial of a motion to dismiss that is predicated on

qualified immunity is an interlocutory ruling which is subject to immediate appeal under

the ‘collateral order’ doctrine.” Syllabus point 1, West Virginia Board of Education v.

Marple, 236 W. Va. 654, 783 S.E.2d 75 (2015).

2. “When a party . . . assigns as error a circuit court’s denial of a motion

to dismiss, the circuit court’s disposition of the motion to dismiss will be reviewed de

novo.” Syllabus point 4, in part, Ewing v. Board of Education of County of Summers, 202

W. Va. 228, 503 S.E.2d 541 (1998).

3. “‘In the absence of an insurance contract waiving the defense, the

doctrine of qualified or official immunity bars a claim of mere negligence against a State

agency not within the purview of the West Virginia Governmental Tort Claims and

Insurance Reform Act, W. Va. Code § 29-12A-1 et seq., and against an officer of that

department acting within the scope of his or her employment, with respect to the

discretionary judgments, decisions, and actions of the officer.’ Syl. Pt. 6, Clark v. Dunn,

195 W. Va. 272, 465 S.E.2d 374 (1995).” Syllabus point 7, West Virginia Regional Jail &

Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).

i

4. “To the extent that governmental acts or omissions which give rise to

a cause of action fall within the category of discretionary functions, a reviewing court must

determine whether the plaintiff has demonstrated that such acts or omissions are in

violation of clearly established statutory or constitutional rights or laws of which a

reasonable person would have known or are otherwise fraudulent, malicious, or oppressive

in accordance with State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992).

In [the] absence of such a showing, both the State and its officials or employees charged

with such acts or omissions are immune from liability.” Syllabus point 11, West Virginia

Regional Jail & Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751

(2014).

ii

Jenkins, Justice:

Petitioners, the West Virginia Regional Jail and Correctional Facility

Authority (“WVRJCA”) and Joshua David Zombro (“Mr. Zombro”) (collectively

“Petitioners”), appeal the circuit court’s November 19, 2018 orders denying their

respective motions to dismiss Respondent’s, the Estate of Cody Lawrence Grove (“the

Estate”), amended complaint for failure to state a claim upon which relief can be granted.

On appeal, Petitioners contend that the circuit court erred in failing to apply a heightened

pleading standard for qualified immunity; failing to find both Petitioners are qualifiedly

immune; failing to find the WVRJCA is a state agency; and failing to dismiss the claim

against the WVRJCA for punitive damages. In contrast, the Estate asserts that the circuit

court correctly applied a notice pleading standard; neither Petitioner is protected from suit

by the qualified immunity doctrine under the facts of this case; and the issues of whether

the WVRJCA is a state agency and subject to punitive damages are irrelevant and not

properly before this Court. 1

Upon careful review of the briefs, the appendix record, the arguments of the

parties, and the applicable legal authority, we find that the circuit court erred by incorrectly

failing to apply the heightened pleading standard applicable to cases implicating qualified

immunity; failing to appropriately consider whether qualified immunity applied to shield

1

The Estate does concede, for the purposes of this appeal, that the WVRJCA

is a state agency and is not subject to punitive damages.

1

Petitioners from suit; failing to determine whether the WVRJCA is a state agency; and

failing to address punitive damages. Consequently, we reverse the November 19, 2018

orders of the circuit court and remand this case to the circuit court with instructions to

consider the allegations of the amended complaint pursuant to the heightened pleading

standard applicable to cases implicating qualified immunity; determine whether the claims

against Petitioners are barred by the doctrine of qualified immunity; and ascertain whether

punitive damages are applicable in this matter.

I.

FACTUAL AND PROCEDURAL HISTORY

This appeal arises from the suicide of Cody Lawrence Groves (“Mr.

Groves”) on December 8, 2015, during his incarceration at the Eastern Regional Jail

(“ERJ”), which is operated by the WVRJCA. On December 7, 2017, the Estate filed a

complaint against the WVRJCA and Mr. Zombro, individually, and in his official capacity

as a former correctional officer of the WVRJCA. 2 The complaint alleges that, while he

was incarcerated at the ERJ, Mr. Groves was on suicide watch, medical watch, or some

other heightened watch and that the WVRJCA’s and/or Mr. Zombro’s failure to provide

Mr. Groves with a reasonably safe confinement facility caused Mr. Groves’ death.

Moreover, while the complaint is wholly devoid of the factual circumstances surrounding

We note that this proceeding was originally before the Honorable Judge

2

Debra McLaughlin.

2

Mr. Groves’ death, the Estate contended that there was “[a] failure of staff to intervene on

[Mr. Groves’] behalf” and that the WVRJCA negligently hired, trained, supervised,

employed, and retained Mr. Zombro. Based on these limited allegations, the Estate

asserted seven causes of action against the WVRJCA and/or Mr. Zombro: (1) deprivation

of constitutional rights, (2) negligent supervision, (3) negligent training and retention, (4)

negligent and intentional infliction of emotional distress, (5) general negligence, (6)

wrongful death, and (7) injunctive relief.

Subsequently, on January 15, 2018, Mr. Zombro moved to dismiss the

Estate’s complaint for failure to state a claim upon which relief could be granted. In

particular, Mr. Zombro argued that the complaint “contains no allegations of material facts

regarding acts or omissions by [Mr.] Zombro to support a cause of action against him.” He

further contended that the complaint was “riddled with conclusory allegations and legal

conclusions without any factual support[.]” Additionally, Mr. Zombro asserted that he was

entitled to complete dismissal of all claims based on qualified immunity. 3 Following Mr.

Zombro’s motion, the WVRJCA filed its own motion to dismiss the Estate’s complaint on

January 25, 2018. The WVRJCA moved to dismiss on numerous grounds, including lack

of subject matter jurisdiction, improper venue, and failure to state a claim upon which relief

could be granted. Specifically, the WVRJCA asserted that the claims were barred by

Mr. Zombro also argued for the dismissal of the Estate’s state constitutional

3

law claims and contended that he is immune from punitive damages.

3

sovereign immunity, qualified immunity, lack of pre-suit notice, lack of standing to enjoin,

and lack of sufficient facts to put it on notice of the claims asserted against it. In addition,

the WVRJCA claimed that it was not subject to punitive damages and also argued for the

dismissal of the Estate’s state constitutional law claims.

The Estate opposed the motions to dismiss and also moved for leave to

amend its original complaint to add PrimeCare Medical of West Virginia, Inc., as another

defendant. On April 12, 2018, the circuit court issued an order granting the WVRJCA’s

motion to dismiss. The circuit court noted that its standards of review included the

“heightened pleading standard,” because this was a matter involving qualified immunity

issues and the general West Virginia Rule of Civil Procedure 12(b)(6) standard of review.

While the circuit court acknowledged that the WVRJCA’s motion to dismiss raised

numerous grounds, it further recognized that the issues of sovereign immunity, pre-suit

notice to the State, and standing “are jurisdictional issues that must be decided prior to

evaluating the sufficiency of the [c]omplaint.” The circuit court found that “[d]espite [the

Estate’s] claim to the contrary, the [WVRJCA] is a state agency under the administration

of the West Virginia Department of Military Affairs and Public Safety. W. Va. Code § 5F-

2-1(i)(10)[.]” The circuit court further found that the Estate had “failed to plead that an

insurance policy of [the WVRJCA] covers any alleged damages, or that [the Estate] is only

seeking damages up to the limits of that policy.” Accordingly, the circuit court concluded

that the WVRJCA was “immune from suit pursuant to Section 35, Article VI of the West

Virginia Constitution.” Furthermore, the circuit court ruled that, as a state agency, the

4

WVRJCA was entitled to pre-suit notification pursuant to West Virginia Code section 55-

17-3 and that the Estate had failed to demonstrate any compliance with the statutory pre-

suit notice requirements. Therefore, the circuit court found that it was without jurisdiction

and could not address the other grounds raised in the WVRJCA’s motion to dismiss. The

circuit court dismissed the complaint without prejudice as to the WVRJCA. On April 25,

2018, the circuit court granted the Estate’s motion to amend the complaint. 4

Following the circuit court’s April 25th order, the Estate filed an amended

complaint on May 9, 2018. 5 The amended complaint named not only the WVRJCA and

Mr. Zombro as defendants, but it also added an additional defendant, PrimeCare Medical

of West Virginia, Inc. (“PrimeCare”). The Estate’s amended complaint asserted the same

causes of action alleged in its initial complaint. Generally, the facts alleged in support of

the various causes of action in the amended complaint include that Mr. Grove “was on

‘suicide watch[,]’ [] ‘medical watch,’ and/or under a heightened level of monitoring and/or

supervision[,]” and that “[d]efendants knew or should have known Cody Grove was

addicted to heroin and a possible suicide risk.” The Estate further asserted that

4

It does not appear in the record we have before us that the circuit court ruled

on Mr. Zombro’s separately filed motion to dismiss prior to or after the complaint was

amended. During a subsequent hearing, Mr. Zombro suggested that he believed that the

motion was mooted by the court allowing the Estate to amend its original complaint.

Accordingly, it appears as though the case was continuing against Mr. Zombro at the time

the circuit court granted the Estate leave to file an amended complaint.

Shortly after the amended complaint was filed, this case was reassigned to

5

the Honorable Judge Laura Faircloth.

5

[d]efendants owed a duty . . . to provide a reasonably safe

confinement facility[;] a duty to properly hire, train, retain, and

supervise its correctional officers as well as ensure that inmates

were kept safe and secure, especially those under heightened

monitoring[;] and had a legal obligation to do so pursuant to 95

CSR 1-14.1 and 95 CSR 1-14.9.5, 7, 11 and 12.

Moreover, the Estate contended that the WVRJCA “otherwise negligently breached its

duty to properly hire, train and supervise [Mr. Zombro;] negligently retained [Mr. Zombro]

in its employ[;] and negligently failed to protect Plaintiff from a violation of his

constitutional, statutory and common law rights and protections.” The Estate further

alleged that Mr. Zombro “was to perform regular checks of Cody Grove’s welfare. Upon

information and belief, [Mr. Zombro] missed at least one (1) of those safety checks

allowing Cody Grove to hang and kill himself. This was a violation of law, regulation,

Cody Grove’s legal rights and Defendants’ own policies and procedures.”

Subsequently, Mr. Zombro moved to dismiss the amended complaint for

failure to state a claim upon which relief could be granted. In particular, Mr. Zombro

argued that he was qualifiedly immune from suit; that the Estate asserted unrecognized

causes of action; and, for those claims asserted against him in his official capacity, that the

Estate failed to provide pre-suit notice. The Estate filed a response in opposition asserting

that it had pleaded sufficient facts to place Mr. Zombro on notice of the claims, Mr. Zombro

did not have immunity, the violations of various constitutional rights are actionable, and

Mr. Zombro was not entitled to pre-suit notice.

6

The WVRJCA filed an answer to the Estate’s amended complaint and a

cross-claim against PrimeCare, asserting that it would be entitled to contribution and/or

indemnification from PrimeCare should a judgment be rendered in the Estate’s favor.

Contemporaneously, the WVRJCA also filed a motion to dismiss the Estate’s amended

complaint for failure to state a claim. 6 In its motion to dismiss, the WVRJCA again made

various arguments as to why the matter should be dismissed. The WVRJCA contended

that the Estate lacked standing to enjoin it because the Estate’s purported injuries could not

be redressed by an injunction; that it was qualifiedly immune from suit; that the Estate

failed to sufficiently plead facts to put it on notice of the Estate’s claims in counts I, IV,

and VII of the amended complaint; that it was not subject to punitive damages; and that a

stand-alone cause of action for violation of the State constitution is not a recognized claim. 7

6

The certificate of service on the motion to dismiss indicates that it was filed

on January 26, 2018. However, from a review of the record and the docket sheet it appears

that the motion was actually filed on the same day as the answer and cross-claim, i.e. June

26, 2018.

7

We note that the WVRJCA attached several medical records of Mr. Groves

to its motion to dismiss. The general rule is that “[o]nly matters contained in the pleading

can be considered on a motion to dismiss under Rule 12(b) R.C.P., and if matters outside

the pleading are presented to the court and are not excluded by it, the motion should be

treated as one for summary judgment . . . .” Syl. pt. 3, in part, Riffle v. C.J. Hughes Constr.

Co., 226 W. Va. 581, 703 S.E.2d 552 (2010) (quotations and citations omitted). However,

certain exceptions to this general rule have been recognized. Exhibits attached to a motion

to dismiss that are not acknowledged by the circuit court do not require the motion to be

converted to a summary judgment motion. West Virginia Rule of Civil Procedure 12(b)

allows a court to exclude matters outside the pleadings. Specifically, Rule 12(b)(7)

provides that

[i]f, on a motion asserting the defense numbered (6) to

dismiss for failure of the pleading to state a claim upon which

relief can be granted, matters outside the pleading are

7

The Estate filed a response in opposition asserting that it had pleaded sufficient facts to

place the WVRJCA on notice of the claims, it had standing to seek an injunction, the

WVRJCA did not have immunity, the WVRJCA is subject to punitive damages, and the

violations of various State constitutional rights are actionable. The WVRJCA filed a reply

on July 25, 2018.

At an August 27, 2018 hearing, without giving any significant opportunity to

the parties to argue the substance of the motions to dismiss, the circuit court informed the

parties that it intended to deny the motions to dismiss, stating that “I want to see what the

presented to and not excluded by the court, the motion shall be

treated as one for summary judgment and disposed of as

provided in Rule 56, and all parties shall be given reasonable

opportunity to present all material made pertinent to such a

motion by Rule 56.

W. Va. R. Civ. P. 12(b)(7) (emphasis added). Accordingly, “[t]he mere fact that documents

are attached to a Rule 12(b)(6) motion to dismiss does not require converting the motion

to a Rule 56 motion for summary judgment.” Louis J. Palmer & Robin J. Davis, Litigation

Handbook § 12(b)[8][g], at 417 (5th ed. 2017). This is because courts deciding whether a

motion to dismiss should be converted to a motion for summary judgment “have broad

discretion in determining whether or not to accept materials beyond the pleadings.” Lowe

v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998). See also Palmer & Davis,

supra §12(b)[8][g], at 418 (observing that “as long as a court does not rely on extraneous

documents, even though the documents may have been read, a court is not required to

convert a Rule 12(b)(6) motion to a Rule 56 motion”). In the present matter, a clear reading

of the order denying the WVRJCA’s motion to dismiss demonstrates that the circuit court

did not rely on any of the medical record documents attached to the WVRJCA’s motion to

dismiss.

8

development of the evidence is before I make [sic] grant any motion to dismiss.” 8 In a

September 11, 2018 order, the circuit court acknowledged receipt of proposed orders

denying the WVRJCA’s and Mr. Zombro’s respective motions to dismiss prepared by the

Estate. The circuit court stated that it would “review these orders and modify them as

necessary.” Subsequently, the circuit court entered its separate orders denying the

WVRJCA’s and Mr. Zombro’s motions to dismiss on November 19, 2018. 9 In its order

denying the WVRJCA’s motion to dismiss, the circuit court recognized that the motion to

dismiss raised five grounds for dismissal, including that the WVRJCA is protected from

During the hearing, counsel for the WVRJCA asked the court whether it

8

intended to deny the entirety of the motions because the court had not addressed all of the

issues during the hearing. Specifically, the following exchange occurred:

Mr. Delligatti [Counsel for the WVRJCA]: I don’t think you

addressed all of the – I think that addressed the issue of

qualified immunity whether the claim was stated but there are

also issues about whether a state agency could be subject to

punitive damages, et cetra, I mean are you saying that –

The Court: It’s to all aspects.

PrimeCare also filed a motion to dismiss the Estate’s amended complaint

9

on a different issue, which the circuit court denied by a third separate order. PrimeCare

then filed a petition for a writ of prohibition with this Court. Finding that the Estate’s

failure to comply with the pre-suit notice requirements of the Medical Professional

Liability Act deprived the circuit court of subject matter jurisdiction, this Court determined

that the circuit court erred by failing to dismiss the Estate’s claims against PrimeCare.

Accordingly, we granted the writ of prohibition, vacated the circuit court’s order denying

PrimeCare’s motion to dismiss, and remanded the case for entry of an order dismissing the

Estate’s claims against PrimeCare. See generally State ex rel. PrimeCare Med. of W. Va.,

Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 (2019).

PrimeCare is not a party to this appeal and has not appeared before the Court

in this matter.

9

suit by qualified immunity and is not subject to punitive damages. In its order denying Mr.

Zombro’s motion to dismiss, the circuit court recognized that the motion to dismiss raised

three grounds for dismissal, including protection from suit by qualified immunity.

Regarding the standard of review, the circuit court found in both orders that the Estate’s

“burden . . . is a relatively light one.” (Citation omitted). Furthermore, the circuit court

concluded in both orders that the Estate “has set forth a sufficient basis to deny [the

WVRJCA’s and Zombro’s] Motion to Dismiss” and that the Estate “has set forth . . .

sufficient facts to put Defendants on notice of the nature of Plaintiff’s claims. The Plaintiff

has provided sufficient clarity so that the Defendants can understand the nature of

Plaintiff’s factual claims and legal theories of the action.” 10 The WVRJCA and Mr.

Zombro now appeal the circuit court’s respective orders denying their motions to dismiss.

II.

STANDARD OF REVIEW

The WVRJCA and Mr. Zombro ask this Court to review the circuit court’s

denial of their respective motions to dismiss pursuant to West Virginia Rule of Civil

Procedure 12(b)(6). 11 In Syllabus point 1 of West Virginia Board of Education v. Marple,

10

The circuit court also made findings relative to PrimeCare’s motion to

dismiss and its arguments concerning the lack of a screening certificate of merit, but those

findings are not recounted here because they do not concern issues germane to this appeal.

11

West Virginia Rule of Civil Procedure 12(b)(6) allows a defendant in a

civil action to file a motion to dismiss a claim against him/her for “failure to state a claim

upon which relief can be granted.”

10

236 W. Va. 654, 783 S.E.2d 75 (2015), we held: “A circuit court’s denial of a motion to

dismiss that is predicated on qualified immunity is an interlocutory ruling which is subject

to immediate appeal under the ‘collateral order’ doctrine.”

Having established that this appeal is properly before this Court, we turn to

the appropriate standard of review. We previously have held that “[w]hen a party . . .

assigns as error a circuit court’s denial of a motion to dismiss, the circuit court’s disposition

of the motion to dismiss will be reviewed de novo.” Syl. pt. 4, in part, Ewing v. Bd. of

Educ. of Cty. of Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998). Furthermore, “[f]or

purposes of the motion to dismiss, the complaint is construed in the light most favorable to

plaintiff [ ], and its allegations are to be taken as true.” Marple, 236 W. Va. at 660, 783

S.E.2d at 81 (quotations and citation omitted). “[D]ismissal for failure to state a claim is

only proper where it is clear that no relief could be granted under any set of facts that could

be proved consistent with the allegations in the complaint.” Id. (citation omitted).

However, a plaintiff’s complaint must, “at a minimum[,] . . . set forth sufficient information

to outline the elements of his [or her] claim,” and, “in civil actions where immunities are

implicated, the trial court must insist on heightened pleading by the plaintiff.” Id.

(quotations and citations omitted). With these standards in mind, we now turn to the

parties’ respective arguments.

11

III.

DISCUSSION

The WVRJCA raises four assignments of error in this appeal. First, the

WVRJCA asserts that the circuit court erred by applying a notice pleading standard rather

than a heightened pleading standard to a motion to dismiss based on qualified immunity.

Second, the WVRJCA contends that the circuit court erred by failing to find the WVRJCA

is qualifiedly immune. Third, the WVRJCA argues that the circuit court erred to the extent

that it found the WVRJCA is not a state agency. Fourth, the WVRJCA asserts that the

circuit court erred by not dismissing the claim against it for punitive damages.

Similarly, Mr. Zombro asserts two assignments of error on appeal. First, Mr.

Zombro argues that the circuit court erred by failing to use the framework for analysis

required by this Court in Marple, 236 W. Va. 654, 783 S.E.2d 75, when qualified immunity

is raised. Second, Mr. Zombro contends that the circuit court erred by denying his motion

to dismiss because he is entitled to qualified immunity from the claims raised in the Estate’s

First Amended Complaint due to the Estate failing to establish that he engaged in any act

or omission related to the suicide of the Estate’s decedent that established the violation of

a clearly established right. However, because we resolve this matter by finding that the

circuit court failed to apply the proper pleading standard and conduct any analysis as to

Petitioners’ claims of qualified immunity, we need not reach the remaining assignments of

error asserted by Petitioners.

12

A. Heightened Pleading Standard

Both the WVRJCA and Mr. Zombro argue that the circuit court incorrectly

applied a notice pleading standard rather than a heightened pleading standard. We agree.

Regarding qualified immunity and a “heightened pleading standard,” this Court previously

has stated:

We believe that in civil actions where immunities are

implicated, the trial court must insist on heightened pleading

by the plaintiff. See Schultea v. Wood, 47 F.3d 1427 (5th Cir.

1995) (en banc) (a § 1983 action); see generally Parkulo v.

West Virginia Board of Probation and Parole, [199 W. Va.

161, 483 S.E.2d 507] [(1996)]. To be sure, we recognize the

label “heightened pleading” for special pleading purposes for

constitutional or statutory torts involving improper motive has

always been a misnomer. 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 [statement] that rests on more than conclusion[s]

alone.” Schultea v. Wood, 47 F.3d [1427,] [] 1433 [5th Cir.

1995]. 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.

13

Hutchison v. City of Huntington, 198 W. Va. 139, 149-50, 479 S.E.2d 649, 659-60 (1996)

(emphasis added). Accord Portee v. City of Mount Hope, No. 17-0546, 2018 WL 3203157,

at *2 (W. Va. June 29, 2018) (memorandum decision) (“‘[I]n civil actions where

immunities are implicated, the trial court must insist on heightened pleading by the

plaintiff.’ Hutchison, 198 W. Va. at 149, 479 S.E.2d at 659.’”); W. Va. Dep’t of Educ. v.

McGraw, 239 W. Va. 192, 196 n.5, 800 S.E.2d 230, 234 n.5 (2017) (“In Hutchison v. City

of Huntington, 198 W. Va. 139, 149-50, 479 S.E.2d 649, 659-60 (1996), we stated that

when a defendant’s answer pleads the defense of governmental immunity, the circuit court

should order the plaintiff to file a reply tailored to the defendant’s immunity defense. . . .

Ms. McGraw’s original complaint provided scant detail of the basis of her constitutional

tort claim against the DOE, and consequently, she filed two amended complaints in the

course of the proceedings before the circuit court. Had the circuit court required Ms.

McGraw to file a reply to the DOE’s motion to dismiss pleading qualified immunity, it

might have assisted an early resolution to this dispute.”); W. Va. Bd. of Educ. v. Croaff,

No. 16-0532, 2017 WL 2172009, at *3 (W. Va. May 17, 2017) (memorandum decision)

(“‘In civil actions where immunities are implicated, the trial court must insist on heightened

pleading by the plaintiff.’ Hutchison, 198 W. Va. at 149, 479 S.E.2d at 659.”); W. Va. Bd.

of Educ. v. Marple, 236 W. Va. 654, 60, 783 S.E.2d 75, 81 (2015) (“Furthermore, ‘in civil

actions where immunities are implicated, the trial court must insist on heightened pleading

by the plaintiff.’ Hutchison, 198 W. Va. at 149, 479 S.E.2d at 659.”); Marcus v. Holley,

217 W. Va. 508, 517, 618 S.E.2d 517, 526 (2005) (“In Hutchison v. City of Huntington,

14

198 W. Va. 139, 479 S.E.2d 649 (1996), this Court emphasized the enhanced burden upon

a plaintiff in certain types of cases, explaining that ‘in civil actions where immunities are

implicated, the trial court must insist on heightened pleading by the plaintiff.’ 198 W. Va.

at 149, 479 S.E.2d at 659.”). Accordingly, it is well-established that matters involving

qualified immunity, such as the case presently before us, require a type of “heightened

pleading” standard.

In the matter sub judice, both the WVRJCA and Mr. Zombro filed motions

to dismiss asserting various reasons for dismissal, including being protected from suit by

qualified immunity. However, the circuit court’s order makes absolutely no mention of a

“heightened pleading” standard with regard to the Petitioners’ qualified immunity claims. 12

Instead, the circuit court, through its respective orders, merely states that the Estate

has set forth in its First Amended Complaint sufficient facts to

put [the WVRJCA and Mr. Zombro] on notice of the nature of

[the Estate’s] claims. The [Estate] has provided sufficient

clarity so that [the WVRJCA and Mr. Zombro] can understand

the nature of [the Estate’s] factual claims and legal theories of

the action.

(Emphasis added). From this language, it is clear that the circuit court applied the notice

pleading standard applicable to civil actions, generally, and not the heightened pleading

standard required in cases involving qualified immunity. Accordingly, we find that the

12

On the other hand, the circuit court’s order, authored by the original circuit

court judge assigned to the matter, on the first motion to dismiss filed by the WVRJCA did

apply a heightened pleading standard.

15

circuit court erred by failing to apply the heightened pleading standard in this particular

matter and reverse its ruling in this regard.

B. Failure to Conduct Qualified Immunity Analysis

Petitioners also claim that the circuit court failed to conduct a proper

qualified immunity analysis. As this Court explained in Hutchison, “[t]he very heart of the

[qualified] 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. We also have

recognized that

a ruling on qualified immunity should be made early in the

proceedings so that the expense of trial is avoided where the

defense is dispositive. First and foremost, qualified immunity

is an entitlement not to stand trial, not merely a defense from

liability. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct.

2806, 86 L. Ed. 2d 411 (1985) (“The entitlement is an

immunity from suit rather than a mere defense to liability; and

like an absolute immunity, it is effectively lost if a case is

erroneously permitted to go to trial.”).

Maston v. Wagner, 236 W. Va. 488, 498, 781 S.E.2d 936, 946 (2015). Therefore, because

we consistently have acknowledged that qualified immunity is not just a defense, but rather

“an entitlement not to stand trial,” id., rulings on qualified immunity claims should be made

as early in the proceedings as possible. The uniqueness of qualified immunity and its

provision of total immunity from suit rather than just a defense is an important reason for

the aforementioned heightened pleading. See Xiao v. Rodriguez, No. A18-0646, 2019 WL

1983488, at *8 (Minn. Ct. App. May 6, 2019), review denied (Aug. 6, 2019), cert. denied

sub nom. Jun Xiao v. Regents of the Univ. of Minn., __ U.S. __, 140 S. Ct. 851, 205

16

L. Ed. 2d 464 (2020), reh’g denied, __ U.S. __, 140 S. Ct. 1553, 206 L. Ed. 2d 387 (2020)

(“The ‘allegations in a complaint may provide the basis for denying an immunity defense.’

Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 318 (Minn. App. 1997)

(emphasis in original), aff’d in part, 582 N.W.2d 216 (Minn. 1998). Cases implicating

immunity, however, are subject to a somewhat heightened pleading standard. See Elwood

v. Rice Cty., 423 N.W.2d 671, 676 (Minn. 1988). That is, plaintiffs ‘should supply in their

complaints or other supporting materials greater factual specificity and particularity than

is usually required.’ Id. (quotation omitted). And, immunity should be determined ‘at the

earliest possible stage to shield officers from disruptive effects of broad-ranging discovery

and effects of litigation.’ Id. at 675.”). Accordingly, Mr. Zombro argues that “[t]he

purpose of requiring ‘heightened pleading’ by a plaintiff permits a framework by which a

circuit court may engage in an analysis to determine whether a plaintiff has a sufficient

claim to overcome the qualified immunity.” We agree.

The issue of qualified immunity has come before this Court on countless

occasions. Consequently, we have developed a significant body of law in order to

determine whether a state agency, a state employee, or both are entitled to be protected

from suit by the doctrine of qualified immunity. The doctrine of qualified immunity

insulates a state actor from suit where the requisite conditions have been satisfied. See

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

(2014). Therefore, a necessary prerequisite to a qualified immunity analysis is an initial

determination of whether the party seeking qualified immunity protection is a state actor.

17

This Court has established numerous steps that must be examined in order to find whether

qualified immunity protections apply in a particular case. For example, we have held that,

“[i]n the absence of an insurance contract waiving the

defense, the doctrine of qualified or official immunity bars a

claim of mere negligence against a State agency not within the

purview of the West Virginia Governmental Tort Claims and

Insurance Reform Act, W. Va. Code § 29-12A-1 et seq., and

against an officer of that department acting within the scope of

his or her employment, with respect to the discretionary

judgments, decisions, and actions of the officer.” Syl. Pt. 6,

Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).

Syl. pt. 7, A.B., 234 W. Va. 492, 766 S.E.2d 751. We further have held that,

[t]o the extent that governmental acts or omissions

which give rise to a cause of action fall within the category of

discretionary functions, a reviewing court must determine

whether the plaintiff has demonstrated that such acts or

omissions are in violation of clearly established statutory or

constitutional rights or laws of which a reasonable person

would have known or are otherwise fraudulent, malicious, or

oppressive in accordance with State v. Chase Securities, Inc.,

188 W. Va. 356, 424 S.E.2d 591 (1992). In [the] absence of

such a showing, both the State and its officials or employees

charged with such acts or omissions are immune from liability.

Syl. pt. 11, A.B., 234 W. Va. 492, 766 S.E.2d 751. As such, whenever a defendant raises

the issue of qualified immunity in a motion to dismiss, the circuit court must look to our

qualified immunity body of law and follow the steps this Court expressly has outlined to

make the determination of whether qualified immunity applies under the specific

circumstances of that particular case. Specifically, these steps include whether: (1) a state

agency or employee is involved; (2) there is an insurance contract waiving the defense of

qualified immunity; (3) the West Virginia Governmental Tort Claims and Insurance

Reform Act, W. Va. Code § 29-12A-1 et seq. would apply; (4) the matter involves

18

discretionary judgments, decisions, and/or actions; (5) the acts or omissions are in violation

of clearly established statutory or constitutional rights or laws of which a reasonable person

would have known or are otherwise fraudulent, malicious, or oppressive; and (6) the State

employee was acting within his/her scope of employment. See generally A.B., 234 W. Va.

492, 766 S.E.2d 751.

In the matter now before us, as stated above, both the WVRJCA and Mr.

Zombro filed motions to dismiss asserting that each is protected from suit by the doctrine

of qualified immunity. Accordingly, the circuit court was required to engage in an

examination of the amended complaint, using the requisite heightened pleading standard,

to determine whether the Estate sufficiently alleged the WVRJCA and/or Mr. Zombro had

committed discretionary governmental acts or omissions in violation of clearly established

statutory or constitutional rights or laws of which a reasonable person would have known

or whether they had engaged in conduct that was otherwise fraudulent, malicious, or

oppressive. However, as evidenced by its final orders, the circuit court failed to undertake

such an analysis.

Instead, as discussed above, the circuit court simply found the Estate “has set

forth in its First Amended Complaint sufficient facts to put [the WVRJCA and Mr.

Zombro] on notice of the nature of [the Estate’s] claims.” The orders are devoid of any

factual findings other than (1) that Mr. Groves’ suicide occurred on December 8, 2015,

while in the custody of the WVRJCA and under the direct supervision of Mr. Zombro and

19

(2) a listing of all the reasons upon which Petitioners based their respective motions to

dismiss. There is absolutely no examination or analysis of our well-established qualified

immunity framework. 13 At no point, during either the hearing or in the circuit court’s

orders, did the circuit court examine whether the Petitioners were state actors 14 or that the

alleged acts or omissions of Petitioners were discretionary functions. Neither did the

circuit court even attempt to identify a clearly established statutory or constitutional right

or law of which a reasonable person would have known. Furthermore, the circuit court did

not consider whether any alleged conduct by the WVRJCA or Mr. Zombro, if taken as true,

evidences an intent by either or both Petitioners to violate a clearly established statutory or

constitutional right or whether such actions or inactions otherwise could be found to be

13

The circuit court’s respective orders also contained certain factual

inaccuracies. Specifically, the orders identify Mr. Zombro as an employee of PrimeCare

rather than an employee of the WVRJCA. Furthermore, the circuit court orders discuss an

issue relating to PrimeCare which has no bearing on the issues in the subject motions to

dismiss.

14

In rendering its decision on the WVRJCA’s motion to dismiss the initial

complaint, below, the circuit court specifically stated that the WVRJCA is a state agency

and that ruling was not challenged. Furthermore, the Estate has now conceded the

WVRJCA’s state agency status. Therefore, the circuit court’s ruling in this regard has

become the law of the case and is not amenable to further challenge in the case sub judice.

State ex rel. TermNet Merch. Servs., Inc. v. Jordan, 217 W. Va. 696, 702 n.14, 619 S.E.2d

209, 215 n.14 (2005) (“The law of the case doctrine provides that a prior decision in a case

is binding upon subsequent stages of litigation between the parties in order to promote

finality.”). However, the circuit court did not make a definitive determination as to whether

Mr. Zombro was a state employee during the underlying proceedings. Therefore, as part

of its instructions on remand, the circuit court should consider whether Mr. Zombro was a

state employee during the relevant time period before it applies the additional analysis to

determine whether Mr. Zombro, himself, can claim qualified immunity from suit.

20

fraudulent, malicious, or oppressive. 15 Therefore, in addition to its previously recognized

error in failing to apply the correct heightened pleading standard in this matter where the

doctrine of qualified immunity has been implicated, the circuit court further erred by failing

to conduct any semblance of an analysis regarding qualified immunity.16 As such, this

failure, also, is grounds for reversal of the circuit court’s orders and requires proceedings

on remand to thoroughly consider Petitioners’ claims of qualified immunity. 17

15

Moreover, the Estate submitted a proposed order, to which both the

WVRJCA and Mr. Zombro objected, but which, interestingly, undertook a qualified

immunity analysis. However, the circuit court did not adopt in full or even in part any of

that portion of the proposed order. Instead, as discussed above, the circuit court failed to

engage in any qualified immunity analysis whatsoever.

16

Additionally, the WVRJCA urges this Court to adopt the federal

plausibility pleading standard as set forth in the cases of Bell Atlantic Corp. v Twombly,

550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S.

662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). However, we repeatedly have declined to

adopt this standard, and we again decline to do so in the case sub judice. See, e.g., Hoover

v. Moran, 222 W. Va. 112, 116 n.3, 662 S.E.2d 711, 715 n.3 (2008) (per curiam); Highmark

W. a., Inc. v. Jamie, 221 W. Va. 487, 491 n.4, 655 S.E.2d 509, 513 n.4 (2007) (per curiam).

17

As discussed herein, when undertaking the qualified immunity analysis,

the circuit court also must necessarily make a finding as to whether state actors are

involved. Accordingly, we remind the circuit court if it finds that a government agency as

defined in West Virginia Code section 55-17-2(2) (eff. 2002) has been named as a

defendant in this case, it must then consider whether an award of punitive damages is

permitted in light of the prohibition of West Virginia Code section 55-17-4(3) (eff. 2002)

directing that “[n]o government agency may be ordered to pay punitive damages in any

action.”

21

IV.

CONCLUSION

For the reasons set forth above, the November 19, 2018 orders of the Circuit

Court of Berkeley County are reversed, and this case is remanded with instructions to

appropriately consider the heightened pleading standard applicable to cases implicating

qualified immunity, whether punitive damages are applicable in this matter, and

appropriate consideration of whether the case is barred by the doctrine of qualified

immunity.

Reversed and Remanded with Instructions.

22