holding that prosecutors are absolutely immune 22 for alleged Brady violations because the decision of whether to disclose evidence is indisputably a prosecutorial function
How later courts described this case
- holding that prosecutors are absolutely immune 22 for alleged Brady violations because the decision of whether to disclose evidence is indisputably a prosecutorial function
- holding that a claim for malicious prosecution cannot lie where probable cause exists
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2023 Term FILED
_______________
November 8, 2023
No. 22-0111 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
NORM LAUNI, II,
Plaintiff Below, Petitioner
v.
THE HAMPSHIRE COUNTY PROSECUTING ATTORNEY’S OFFICE and COUNTY
OF HAMPSHIRE, WEST VIRGINIA, et al.,
Defendants Below, Respondents
Appeal from the Circuit Court of Mineral County
The Honorable James Courrier, Jr.
Case No. 19-C-15
AFFIRMED
Submitted: October 10, 2023
Filed: November 8, 2023
Christian J. Riddell, Esq. Tracey B. Eberling, Esq.
The Riddell Law Group Steptoe & Johnson PLLC
Martinsburg, WV Martinsburg, WV
Counsel for Petitioner Counsel for Respondent Nazelrod
James W. Marshall, III, Esq.
Adam K. Strider, Esq.
Bailey & Wyant, PLLC
Martinsburg, WV
Counsel for Respondents James and Ours
CHIEF JUSTICE WALKER delivered the opinion of the Court.
JUSTICE BUNN, deeming herself disqualified, did not participate in this decision.
JUDGE TERA SALANGO, sitting by temporary assignment.
SYLLABUS BY THE COURT
1. “‘Appellate review of a circuit court’s order granting a motion to
dismiss a complaint is de novo.’ Syllabus point 2, State ex rel. McGraw v. Scott Runyan
Pontiac–Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).” Syllabus Point 1, Albright
v. White, 202 W. Va. 292, 294, 503 S.E.2d 860, 862 (1998).
2. “The trial court, in appraising the sufficiency of a complaint on a Rule
12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” Syllabus Point
3, Chapman v. Kane Transfer Co., 160 W. Va. 530, 530, 236 S.E.2d 207, 208 (1977)
i
WALKER, Chief Justice:
Petitioner Norm Launi II was working as a Detective with the Hampshire
County Sheriff’s Department until he was prosecuted in 2017 for domestic battery and
domestic assault, of which he was eventually acquitted at trial. He then brought claims of
malicious prosecution and civil conspiracy against certain officials involved in his
prosecution – Respondents Dan James, John Ours, and Scott Nazelrod – and a claim for
abuse of process against Nazelrod. The circuit court dismissed the claims against
Respondents James and Ours on the basis of absolute prosecutorial immunity. As to
Respondent Nazelrod, it found that Mr. Launi failed to state valid claims of malicious
prosecution, abuse of process, or civil conspiracy. On appeal, Mr. Launi challenges all of
these rulings as defective, but we concur with the circuit court’s findings and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Launi’s allegations of civil conspiracy and malicious prosecution are
asserted against three respondents: West Virginia State Police Corporal Scott Nazelrod,
special prosecuting attorney John Ours, and Dan James, prosecuting attorney in Hampshire
County at all times relevant to our analysis of these claims. 1 Mr. Launi also asserts a claim
for abuse of process against Cpl. Nazelrod.
1
Dan James is currently the prosecuting attorney in Morgan County.
1
The antagonistic relationship between the parties that would later form the
basis of these claims began with Mr. Launi’s own conduct in November 2013. Mr. Launi
and then-fellow Hampshire County law enforcement officials placed a bear carcass in the
back of Prosecutor James's truck as a practical joke. Several years after that incident,
Prosecutor James accused Mr. Launi of playing a role in the death of his then-partner,
Captain Eckerson, despite Prosecutor James’s knowledge that Mr. Launi was out of town
on scheduled leave at the time. 2 Cpl. Nazelrod became involved when the West Virginia
State Police assigned him to investigate the circumstances surrounding Capt. Eckerson’s
death.
Tensions escalated in January of 2017, when Prosecutor James received a
call from Mr. Launi’s previous live-in girlfriend, Penny Hartman, alleging that she had
video recordings showing Mr. Launi committing domestic violence against her. Mr. Launi
alleges that after receiving the call from Ms. Hartman, Prosecutor James “directed” Cpl.
Nazelrod to investigate the claims.
In his brief to this Court, Mr. Launi alleges that Prosecutor James filed a
petition to revoke Ms. Hartman’s bond from a late 2016 DUI charge “in order to force her
to pursue charges against the Petitioner for domestic violence.” The grounds for revocation
It is not entirely clear from the record, but it appears that Captain Eckerson died
2
of a drug overdose.
2
were that Ms. Hartman had harassed Mr. Launi over the phone and then Mr. Launi pursued
charges against her. After her release, Ms. Hartman filed for a domestic violence protective
order, and Cpl. Nazelrod allegedly contacted Magistrate John Rohbaugh at home to
personally request that the protective order issue. Once it did, Mr. Launi was forced to turn
in his weapons and was no longer able to work as a detective with the Hampshire County
Sheriff’s office.
In February of 2017, as part of his investigation of the domestic violence
charges, Cpl. Nazelrod conducted an interview with Mr. Launi regarding the pending
domestic violence charges against Ms. Hartman. Mr. Launi denied physical assault of any
kind and provided Cpl. Nazelrod with his side of the story. But at some point during that
interview, Mr. Launi became aware that Prosecutor James had been the source of
information relative to recordings of alleged domestic violence between Mr. Launi and Ms.
Hartman.
In the criminal complaint Cpl. Nazelrod filed, Mr. Launi was charged with
three counts of domestic battery and one count of domestic assault. Mr. Launi alleges that
Cpl. Nazelrod’s criminal complaint “made no mention of the Petitioner’s statement or any
of the information obtained during that interview,” and that “much of the evidence claimed
to exist in the videos provided by Ms. Hartman was not present.” Mr. Launi also claims
that he reasonably believed that Prosecutor James drafted the complaint since “it does not
3
follow the standard structure of complaint writing and it appears to have been drafted by
an individual with legal training.” 3
Before the case proceeded to trial, the Mineral County Prosecutor recused
himself due to a perceived conflict, 4 and Prosecutor Ours was appointed as special
prosecutor. According to Mr. Launi, Ms. Hartman repeatedly requested that the domestic
battery and assault charges be dismissed, but Prosecutor Ours denied her request. Mr.
Launi, having recorded his February interview with Cpl. Nazelrod, also maintains that
thirty-six minutes of that interview had been withheld from discovery by Cpl. Nazelrod
and the prosecutor respondents.
Mr. Launi argued in his criminal case that the missing portion of the February
statement amounted to falsifying evidence. While the court reprimanded Cpl. Nazelrod, it
ruled that the parties would proceed to trial and after the State’s case-in-chief, denied
3
Although the investigation began in Hampshire County, at some point, Cpl.
Nazelrod discovered that the alleged incidents of domestic violence had occurred in
Mineral County, so the complaint was filed there instead.
4
The recused Mineral County prosecutor is not named in the record, nor is there an
explanation of the basis for the recusal other than his “previous working relationship” with
Mr. Launi.
4
Petitioner’s motion for a judgment of acquittal. After hearing all the evidence against the
Petitioner, the jury returned a verdict of not guilty.
Based on these events, Mr. Launi filed this civil action on October 29, 2019,
alleging civil conspiracy and malicious prosecution against Prosecutors James and Ours,
and intentional infliction of emotional distress claim against Prosecutor James. He also
alleges civil conspiracy, malicious prosecution, and abuse of process against Cpl. Nazelrod.
Mr. Launi later amended his complaint to add additional factual allegations. All three
Respondents filed motions to dismiss the claims, arguing that they were immune as to the
alleged conduct or that Mr. Launi failed to state claims for which relief could be granted.
The circuit court dismissed all counts as to each Respondent except the intentional
infliction of emotional distress claim against Prosecutor James. 5
Petitioner now appeals the dismissal orders.
5
On April 29, 2019, Petitioner filed a federal court action against multiple
defendants, including Respondents Ours, James, and Nazelrod. The allegations in the
federal complaint arise from the same arrest and prosecution at issue in this case. All
defendants moved to dismiss, and the United States District Court for the Northern District
of West Virginia granted the motion to dismiss. Petitioner appealed and the United States
Court of Appeals for the Fourth Circuit affirmed the dismissal. See Launi v. James, No.
20-2010, 2021 WL 5294933 (4th Cir. Nov. 15, 2021).
5
II. STANDARD OF REVIEW
This Court has held that “[a]ppellate review of a circuit court’s order granting
a motion to dismiss a complaint is de novo.” 6 We have clarified that when this Court
reviews a case de novo, the Court “gives a new, complete and unqualified review to the
parties’ arguments and the record before the circuit court.” 7 And, this Court, like “the trial
court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not
dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” 8
Still, although “Rule 8 of the West Virginia Rules of Civil Procedure requires
‘only a short and plain statement of the claim showing that the pleader is entitled to relief’” 9
and although “[c]ourts are to construe ‘all pleadings … as to do substantial justice,’” 10
6
Syl. Pt. 1, Albright v. White, 202 W. Va. 292, 503 S.E.2d 860 (1998) (quoting Syl.
Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461
S.E.2d 516 (1995)).
7
Doe v. Logan Cnty. Bd. of Ed., 242 W. Va. 45, 48, 829 S.E.2d 45, 48 (2019)
(quoting Gastar Exploration Inc. v. Rine, 239 W. Va. 792, 798, 806 S.E.2d 448, 454
(2017)).
8
Syl. Pt. 3, Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977)
(citation omitted).
9
W. Virginia Div. of Corr. & Rehab. v. Robbins, 248 W. Va. 515, 889 S.E.2d 88,
96 (2023).
10
Id.
6
Rules 8 and 9(b) do not countenance sloppy pleading;
“a plaintiff may not fumble around searching for a meritorious
claim within the elastic boundaries of a barebones complaint.”
Instead, they require that “[e]ach averment of a pleading ... be
simple, concise, and direct,” so that “a circuit court or an
opposing party [may] understand whether a valid claim is
alleged and, if so, what it is.” In other words, a complaint “must
set forth enough information to outline the elements of a claim
or permit inferences to be drawn that these elements exist.”[11]
III. ANALYSIS
Petitioner assigns three errors on appeal, each correlating to the circuit
court’s dismissal of his malicious prosecution, civil conspiracy, and abuse of process
claims. We examine these errors in relation to each Respondent in turn.
A. Prosecutorial Immunity
The circuit court dismissed Mr. Launi’s malicious prosecution and civil
conspiracy claims against Prosecutors James and Ours, concluding that those claims were
barred by absolute prosecutorial immunity. On appeal, Mr. Launi argues that the
Prosecutors James and Ours are not entitled to prosecutorial immunity for their actions in
Mr. Launi’s prosecution because they were not acting in their prosecutorial capacities in
11
Id. (internal citations omitted).
7
pursuing the domestic violence charges against him that caused him to lose his position as
a law enforcement officer.
Absolute prosecutorial immunity attaches to protect prosecutors from civil
liability that otherwise would often arise by virtue of the functions they perform for the
State: “[p]rosecutors 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[.]” 12 And,
“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.” 13
Importantly, this Court has recognized that prosecutorial immunity is a
functional analysis. We have explained, “[t]he 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.” 14 With this background, we turn to
12
Mooney v. Frazier, 225 W. Va. 358, 370 n.12, 693 S.E.2d 333, 345 (2010) (citing
Franklin D. Cleckley, et al., Litigation Handbook on West Virginia Rules of Civil
Procedure, 8(c), at 213 (3d ed. 2008)).
13
Id.
14
Id.
8
Petitioner’s allegations against Prosecutor Ours, then Prosecutor James, to determine
whether the conduct on which Mr. Launi’s claims is based was prosecutorial in nature. 15
1. Prosecutor Ours
The limited role of Prosecutor Ours in Mr. Launi’s narrative is prosecuting
Mr. Launi for domestic violence against Ms. Hartman. Mr. Launi acknowledges that
Prosecutor Ours had authority to prosecute the case against him but argues that Prosecutor
Ours orchestrated his appointment in bad faith. Mr. Launi further contends that Prosecutor
Ours moved forward with the prosecution with an improper purpose; he alleges that
Prosecutor Ours conspired with Prosecutor James in fabricating evidence—i.e., deleting
portions of Petitioner’s interview—and that Prosecutor Ours took Ms. Hartman’s
deposition under false pretenses. That conduct, Petitioner argues, removes him from the
protections of absolute prosecutorial immunity.
Notably, Prosecutor Ours was not appointed as special prosecutor until after
charges were filed, that is, after the magistrate (who is not alleged to have participated in
this purported conspiracy) made a probable cause determination. So, Prosecutor Ours was
not present for any of the “investigatory” stages of the prosecution. His conduct, as alleged
15
We note that while this Court has discussed the availability of qualified immunity
to prosecutors who act in an investigative, rather than a prosecutorial capacity, the circuit
court did not perform a qualified immunity analysis, and, insofar as we agree that the
functions performed by Prosecutors James and Ours were prosecutorial in nature, we do
not discuss qualified immunity, either.
9
by Mr. Launi as outside the realm of his prosecutorial function, is that he continued a
prosecution in bad faith.
In concluding that Prosecutor Ours was entitled to absolute immunity, the
circuit court relied on the reasoning of the United States Court of Appeals for the Fourth
Circuit in Springmen v. Williams. 16 There, the prosecutor did not sign the charging
documents, but was entitled to absolute immunity for her decision to initiate a criminal
prosecution. 17 The Springmen court held that whether and when to prosecute is clearly a
prosecutorial function for which she was afforded absolute immunity, finding “[i]t is
difficult to imagine conduct more intimately related to the judicial process than a
prosecutor’s decision to proceed with a prosecution.” 18
We agree with the rationale from Springmen. It is consistent with this
Court’s discussion in Mooney that “initiating and pursuing a criminal prosecution, [and]
presenting a case at trial . . . is intricately associated with the judicial process.” 19 We find
no error in the circuit court’s conclusion that Prosecutor Ours, in continuing the prosecution
of Mr. Launi, was acting in his prosecutorial capacity. The answer is no different in light
16
122 F.3d.211 (4th Cir. 1997).
17
Id. at 213.
18
Id.
19
Mooney, 225 W. Va. at 370 n.12, 693 S.E.2d at 345 n. 12.
10
of Mr. Launi’s allegations of bad faith and improper motives, because, as we discussed in
Mooney, absolute immunity protections do not dissolve even if Prosecutor Ours did not
pursue the prosecution in good faith. 20 So, we affirm the circuit court in this respect.
As for Mr. Launi’s claim that Prosecutor Ours conspired with Prosecutor
James and Cpl. Nazelrod to “fabricate” evidence by deleting portions of the interview, the
circuit court held that Prosecutor Ours was entitled to prosecutorial immunity for his
actions in not disclosing portions of the interview, because “the decision of whether an
item of evidence is disclosable under Brady v. Maryland is a prosecutorial function which
is afforded absolute immunity.” 21
In so deciding, the circuit court relied on another Fourth Circuit case, Carter
v. Burch. 22 There, the court held that the prosecutor was entitled to absolute immunity for
his decision to withhold testimonial evidence because the decision to turn over the evidence
would have occurred after the petitioner’s arrest but before his conviction, so it was clearly
See Mooney, 225 W. Va. at 370 n.7, 693 S.E.2d at 345 n.7 (“absolute prosecutorial
20
immunity cannot be defeated by showing that the prosecutor acted wrongfully or even
maliciously”).
21
See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)
(holding that prosecutors must turn exculpatory evidence over to a criminal defendant in
time for its effective use at trial).
34 F.3d 257, 263 (4th Cir. 1994) (holding that prosecutors are absolutely immune
22
for alleged Brady violations because the decision of whether to disclose evidence is
indisputably a prosecutorial function).
11
part of the presentation of the state’s case. 23 In this case, like Carter, the interview of Ms.
Hartman was taken after the protective order issued, but before Mr. Launi’s acquittal. So,
Prosecutor Ours’s decision, if any, to withhold any portion of that interview can only be
viewed as part and parcel of presenting the state’s case against Petitioner. Clearly, a
prosecutor’s presentation of the case at trial is a prosecutorial function that falls under the
protective ambit of absolute immunity. So, we agree with the circuit court’s conclusion
that Prosecutor Ours’s decision to disclose (or not disclose) any portion of the February
interview with Petitioner is protected from liability for civil suit by absolute prosecutorial
immunity.
Mr. Launi also argues that the circuit court erred in characterizing his claims
as Brady violations because he is not making Fifth Amendment claims in this suit. Rather,
he is making claims of evidence tampering that go beyond that the evidence was not
disclosed. 24 We do not find this argument persuasive. In his complaint, Mr. Launi alleges
that Prosecutor Ours conspired to delete or suppress thirty-six minutes of the interview.
We agree with the circuit court that Mr. Launi’s allegations of deletion or suppression of
23
Id. at 263.
24
Petitioner references Wearry v. Foster, 33 F.4th 260 (5th Cir. 2022), cert. denied,
143 S. Ct. 2459, 216 L. Ed. 2d 432 (2023) to support this contention. We find that the facts
from that United States Court of Appeals for the Fifth Circuit case are not applicable to
those in this case because there, the prosecutor coerced a juvenile witness into testifying.
Here, no allegation of coercion has been made.
12
portions of the interview are Brady-type allegations, however artfully Petitioner phrases
them.
Finally, as to Mr. Launi’s argument that Prosecutor Ours is not immune for
his actions in taking Ms. Hartman’s deposition under false pretenses, we find that taking
witness depositions in the process of prosecuting a case is a prosecutorial function for
which Prosecutor Ours is afforded absolute immunity. As the circuit court did, we note
that Rule 15 of the West Virginia Rules of Criminal Procedure is dispositive of this issue.
It expressly provides for the taking of depositions in criminal prosecutions. Prosecutor
Ours’s deposition of Penny Hartman, the complainant, can only be considered conduct that
is “intricately associated with the judicial process.” 25 We readily conclude that Mr. Launi
has alleged no set of facts showing Prosecutor Ours acted in any capacity other than his
prosecutorial one, and affirm the circuit court’s conclusion that he is absolutely immune
from Mr. Launi’s claims of malicious prosecution and civil conspiracy claims.
2. Prosecutor James
The circuit court also dismissed Mr. Launi’s malicious prosecution and civil
conspiracy claims against Prosecutor James, concluding those claims were barred by
absolute prosecutorial immunity. On appeal, Petitioner argues that Prosecutor James is not
entitled to absolute prosecutorial immunity for his actions in interviewing witnesses
25
Mooney, 225 W. Va. at 370 n.12, 693 S.E.2d at 345 n.12.
13
associated with the case, directing law enforcement in the course of its investigation, and
procuring a prosecution devoid of probable cause because those actions were investigative
in nature and thus outside the scope of his function as a prosecutor.
Specifically, Mr. Launi disputes that Prosecutor James had any prosecutorial
duties here because, as the prosecutor for Hampshire County, he had no role as a
“prosecutor” in the Mineral County prosecution, and, for that reason, cannot avail himself
of prosecutorial immunity. Mr. Launi further contends that Prosecutor James engaged in
investigative functions when he directed Cpl. Nazelrod to Ms. Hartman’s report of
domestic abuse, revoked Ms. Hartman’s bond for a prior DUI charge after she was charged
with telephone harassment, spoke with the press regarding the charges against Petitioner, 26
and involved himself in a conspiracy to suppress portions of the February interview from
Mr. Launi. Mr. Launi then relies on federal authority to argue that absolute immunity
should only apply to “actions that are connected with the prosecutor’s role in judicial
proceedings, not for every litigation-inducing conduct.” 27
26
The circuit court determined that Petitioner’s claim that Prosecutor James spoke
with the press falls outside the scope of prosecutorial immunity and supports his allegation
of intentional inflection of emotional distress, and not any allegation of malicious
prosecution or civil conspiracy. So, we do not disturb the circuit court’s finding on this
matter and need not address any allegations regarding defamatory statements.
27
Burns v. Reed, 500 U.S. 478, 494 (1991).
14
As far as any claim that Respondent James was not entitled to the protections
of prosecutorial immunity because he was Prosecutor of Hampshire County and not
Mineral County, this Court has never held that a prosecutor’s geographic location is
determinative for immunity. Importantly, Mr. Launi’s argument in this respect ignores that
while Prosecutor James was not involved in prosecuting him for domestic violence against
Ms. Hartman, he was, at that same time, seeking to revoke Ms. Hartman’s bond based on
her harassment of Mr. Launi. We reiterate that whether a prosecutor is entitled to absolute
immunity is a functional analysis; prosecutors are immune when taking actions in a
prosecutorial capacity. We turn, then, to the conduct alleged and perform that functional
analysis.
In Buckley v. Fitzsimmons, the Supreme Court of the United States held that
prosecutorial immunity includes not just actions taken within the courtroom, but also
“actions preliminary to the initiation of a prosecution and actions apart from the
courtroom.” 28 But, the court in Buckley drew a distinction between “the advocate’s role
in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand,
and the detective’s role in searching for the clues and corroboration that might give him
probable cause to recommend a suspect be arrested, on the other.” 29 Upon receiving Ms.
28
509 U.S. 259, 272 (1993).
29
Id. at 273-74.
15
Hartman’s complaint, Prosecutor James merely referred the complaint to Cpl. Nazelrod
with the State Police, which had jurisdiction to investigate it, and informed them that there
was sufficient evidence to pursue charges. Even taking the allegations in the light most
favorable to Mr. Launi, Prosecutor James conducted no independent investigation of the
domestic violence Ms. Hartman alleged, and, contrary to Mr. Launi’s assertions, was not
performing any functions that are typically reserved for police officers or detectives in
referring the complaint and giving his professional opinion about the sufficiency of the
evidence. We agree with the circuit court that those functions are consonant with
Prosecutor James’s role as an officer of the court despite that no prosecution had yet begun.
Likewise, Prosecutor James’s decision to file a petition to revoke Ms.
Hartman’s bond was nothing other than an exercise of prosecutorial discretion, since it is
a prosecutor’s duty to weigh the evidence in determining whether to pursue a bond
revocation. Mr. Launi’s contention that Prosecutor James interviewed witnesses associated
with the case and outside of his prosecutorial capacity is also infirm to defeat application
of prosecutorial immunity because it overlooks that Prosecutor James was actively seeking
to revoke Ms. Hartman’s bond based on her harassment of Mr. Launi. By virtue of the
overlap in allegations and witnesses, Prosecutor James acted consistently with a
prosecutor’s role in interviewing witnesses to prepare his own case. And, as we have
already determined in relation to Prosecutor Ours, the disclosure of evidence is
16
indisputably a prosecutorial function entitled to absolute immunity, even if it was done in
bad faith. 30
As alleged, Prosecutor James’s actions, even if proven, in referring the
domestic assault case to the appropriate authorities, interviewing witnesses, revoking Ms.
Hartman’s bond, and excluding evidence all constitute prosecutorial functions. And, as we
explained above, because Petitioner’s complaint alleges malicious prosecution and civil
conspiracy based on those prosecutorial functions, the circuit court appropriately dismissed
those claims. 31
B. Claims against Cpl. Nazelrod
Though Cpl. Nazelrod is not entitled to prosecutorial immunity, the circuit
court concluded that Petitioner’s claims against him for malicious prosecution, civil
conspiracy, and abuse of process fail on their merits. Examining each cause of action
pleaded by Mr. Launi, we agree for the reasons explained below.
30
And, even if Prosecutor James did not have jurisdiction over the prosecution, we
reiterate that the immunity analysis is functional and does not consider geographic location.
31
We note that the circuit court also analyzed Petitioner’s malicious prosecution
and civil conspiracy claims against Prosecutors James and Ours. Because we hold that any
claims for civil liability against the Prosecutor Respondents are barred by prosecutorial
immunity, we need not discuss whether Petitioner can succeed on the merits of those
claims.
17
1. Malicious Prosecution
Mr. Launi argues that the circuit court erred in finding that his claims for
malicious prosecution must fail because there was a probable cause determination. We
have held that,
“[i]n an action for malicious prosecution, plaintiff must
show: (1) that the prosecution was set on foot and conducted
to its termination, resulting in plaintiff's discharge; (2) that it
was caused or procured by defendant; (3) that it was without
probable cause; and (4) that it was malicious. If plaintiff fails
to prove any of these, he cannot recover.” Radochio v. Katzen,
92 W.Va. 340, Pt. 1 Syl. [114 S.E. 746, (1922) ].” Syl. pt. 3,
Truman v. Fidelity & Casualty Co. of New York, 146 W.Va.
707, 123 S.E.2d 59 (1961). [32]
The third element, that the prosecution was undertaken without probable cause, is
determinative here. 33
We begin with the presumption that probable cause underlies every criminal
prosecution:
The public policy favors prosecution for crimes and
requires the protection of a person who in good faith and upon
reasonable grounds institutes proceedings upon a criminal
charge. The legal presumption is that every prosecution for
32
Syl. Pt. 2. Norfolk S. Ry. Co. v. Higginbotham, 228 W. Va. 522, 721 S.E. 2d 541
(2011).
33
See Bailey v. Gollehon, 76 W. Va. 322, 85 S.E. 556 (1915) (holding that a claim
for malicious prosecution cannot lie where probable cause exists).
18
crime is founded upon probable cause and is instituted for the
purpose of justice.[34]
To overcome that presumption, Mr. Launi argues that his complaint alleges that Cpl.
Nazelrod conspired with Prosecutors James and Ours to procure a prosecution devoid of
probable cause, and that the complaint before the magistrate signed by Cpl. Nazelrod
omitted material facts. Those omissions, he claims, evince a lack of probable cause. Mr.
Launi further argues that this Court has previously held that prima facie evidence for
existence of probable cause only attached when a grand jury issues an indictment. 35
Because there was no grand jury finding of probable cause, he argues that this Court should
not presume that there was probable cause here.
This latter argument mischaracterizes our case law. Although we have held
that prima facie evidence for the existence of probable cause does attach when a grand jury
issues an indictment, we have never held that this is the only method for a reviewing court
34
Syl. Pt. 4, McNair v. Erwin, 84 W. Va. 250, 99 S.E. 454 (1919).
35
See Syl. Pt. 5, Jarvis v. West Virginia State Police, 227 W. Va. 472, 711 S.E. 2d
542 (2010) (In a claim for retaliatory prosecution in which a plaintiff alleges that he or she
was criminally prosecuted in retaliation for exercising a right protected by the state or
federal constitution, a grand jury indictment is prima facie evidence of probable cause for
the underlying criminal prosecution, and a plaintiff may rebut this evidence by showing
that the indictment was procured by fraud, perjury, or falsified evidence.’).
19
to make a determination on whether a probable cause finding was made. And, here,
probable cause was established despite that there was no grand jury finding to that effect.
First, a magistrate found probable cause to issue an arrest warrant for
petitioner. Under Rule 4 of the West Virginia Rules of Criminal Procedure, an arrest
warrant issues upon a finding of probable cause. 36 Mr. Launi maintains this is not
dispositive as that magistrate was presented with a complaint that omitted material facts.
Even so, the magistrate presiding over the case was aware of Petitioner’s allegations that
the complaint omitted material facts, 37 and still denied Petitioner’s motion for judgment of
acquittal, finding that the state had produced enough evidence of the crimes charged, such
that the jury should be permitted to determine Petitioner’s guilt or innocence. Implicit in
that denial of the motion of judgment of acquittal is a finding of probable cause. That the
jury later acquitted Petitioner is not indicative that the state lacked probable cause to
prosecute. 38 The facts here, as alleged, cannot establish a lack of probable cause that
36
See R. Crim. P. for Magis. Cts. Of W. Va. 4 (“If it appears from the complaint, or
from an affidavit or affidavits filed with the complaint, that there is probable cause to
believe that an offense has been committed and that the defendant has committed it, a
warrant for the arrest of the defendant shall issue to any officer authorized by law to execute
it.”)
37
Mr. Launi moved for a judgment of acquittal based on the state’s alleged
suppression of evidence at trial.
This is particularly evident because when the State presented its case, Ms. Hartman
38
recanted her prior statements to law enforcement.
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would support a malicious prosecution claim. So, we hold that the circuit court did not err
in dismissing the claim against Cpl. Nazelrod for malicious prosecution.
2. Abuse of Process
Petitioner also challenges the circuit court’s decision to grant Cpl. Nazelrod’s
motion to dismiss on the abuse of process claim. To establish abuse of process in West
Virginia, the Petitioner must show that Cpl. Nazelrod engaged in “the willful or malicious
misuse or misapplication of [a] lawfully issued process to accomplish some purpose not
intended or warranted by that process. 39 Further, this Court has held that in order to
establish a claim for abuse of process “there must be … an intentional and willful
perversion” of lawful process resulting in an “unlawful injury of another.” 40
Petitioner alleges that “by seeking a DVPO on behalf of Penny Hartman …
and by other acts as set forth in the allegations of fact above, [Cpl. Nazelrod] engaged in a
willing and knowing misapplication of lawfully issued process for a purpose not intended
or warranted by that process.” Taken with the factual allegations in the remainder of his
complaint, Mr. Launi argues that by participating in a prosecution he believes was
unfounded and by instructing Penny Hartman to seek a domestic violence protective order
39
Wayne Cnty. Bank v. Hodges, 175 W. Va. 723, 726, 338 S.E. 2d 202, 205 (1985).
40
Williamson v. Harden, 214 W. Va. 77, 80, 585 S.E. 2d 369, 372 (2003).
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for the purpose of harassing him, Cpl. Nazelrod misused and misapplied lawful process to
accomplish a purpose not intended by that process under Hodges. Stated differently, Mr.
Launi’s abuse of process claim is grounded in the allegation that Cpl. Nazelrod’s
investigation was ill-intended and that he veered outside of lawful process in pursuing the
domestic violence charges against him.
We disagree and find that Mr. Launi’s allegations, even if true, cannot make
out a claim for abuse of process because we have held that “there is no liability [for abuse
of process] where the defendant has done nothing more than carry out [a lawful] process
to its authorized conclusion.” 41 It is not alleged that Cpl. Nazelrod, in conducting his
investigation that led him to compile evidence against and file the complaint against Mr.
Launi, committed any act outside lawful process. Rather, he followed standard practices
for law enforcement officers in domestic violence cases: he informed Ms. Hartman of her
right to file for a protective order, he contacted the magistrate to inform him that Ms.
Hartman was interested in filing for a protective order, and he served Ms. Hartman with a
subpoena. As the circuit court concluded, “even if [Cpl. Nazelrod] had bad intentions, he
did nothing more than use standard process to its natural conclusion.”
It is clear that Mr. Launi has alleged no set of facts in support of his claim
for abuse of process that could support a claim against Cpl. Nazelrod for abuse of process
41
Preiser v. McQueen, 177 W. Va. at 279 n.8, 352 S.E.2d at 28 n.8.
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where the allegations establish that Cpl. Nazelrod followed the standard procedures when
addressing a domestic violence complaint. So, we find that the circuit court did not err in
dismissing Mr. Launi’s claim for abuse of process.
3. Civil Conspiracy
Finally, Mr. Launi argues that the circuit court erred in dismissing his claims
of civil conspiracy against Cpl. Nazelrod because, first, “to the extent this Court agrees
with Petitioner’s arguments [as to malicious prosecution and abuse of process], the circuit
court’s finding on this point should also be reversed,” and second, “there are other
allegations of civil conspiracy which are not dependent on a finding by this Court as to the
sufficiency of Petitioner’s malicious prosecution and abuse of process claims.” To
substantiate this second argument, he asserts that his complaint contains other allegations
of unlawful conduct having to do with Cpl. Nazlrod’s tampering and destruction of
evidence.
Because we find that the circuit court did not err in dismissing Petitioner’s
claims against Prosecutors Ours and James, we also affirm the circuit court’s dismissal of
his civil conspiracy claim against Cpl. Nazelrod. We find no merit in Petitioner’s argument
that the claim for conspiracy somehow goes beyond his claims for malicious prosecution
and abuse of process. Not only is this argument newly raised on appeal, it lacks support in
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the complaint itself, in which Petitioner bases the conspiracy claim on the same allegations
as malicious prosecution.
IV. CONCLUSION
For the reasons discussed above, we affirm the August 12, 2020 orders of the
circuit court of Mineral County.
Affirmed.
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