“‘The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6
How later courts described this case
- “‘The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6
- “Courts cannot concoct or resurrect arguments neither made nor advanced by the parties.”
- hiring and employee retention are discretionary functions
- observing that “the Court in Hutchison offered remedies for situations where a public entity or official asserts immunity in an answer but the plaintiff has failed to file a ‘heightened pleading’”
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
January 2024 Term
March 5, 2024
_______________ released at 3:00 p.m.
C. CASEY FORBES, CLERK
No. 22-0389 SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
WEST VIRGINIA DEPARTMENT OF HUMAN SERVICES,
Defendant Below/Petitioner,
v.
A.R.,
Plaintiff Below/Respondent.
Appeal from the Circuit Court of Kanawha County
The Honorable Kenneth D. Ballard, Judge
Consolidated Cases Nos. 20-C-571 & 20-C-963
REVERSED IN PART AND REMANDED
Submitted: January 10, 2024
Filed: March 5, 2024
Jan L. Fox, Esq. W. Jesse Forbes, Esq.
Mark C. Dean, Esq. Jennifer N. Taylor, Esq.
Steptoe & Johnson PLLC FORBES LAW OFFICES, PLLC
Charleston, West Virginia Charleston, West Virginia
Counsel for Petitioner
L. Dante diTrapano, Esq.
Calwell Luce diTrapano, PLLC
Charleston, West Virginia
Counsel for Respondent
JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE BUNN, deeming herself disqualified, did not participate in this decision.
JUDGE H. CHARLES CARL, III, sitting by temporary assignment.
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).” Syllabus Point 4, West Virginia State Police,
Department of Military Affairs & Public Safety v. J.H. by & through L.D., 244 W. Va. 720,
856 S.E.2d 679 (2021).
3. “‘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, 236 S.E.2d 207 (1977).” Syllabus
Point 2, Mountaineer Fire & Rescue Equipment, LLC v. City National Bank of W. Va., 244
W. Va. 508, 854 S.E.2d 870 (2020).
i
4. “The ultimate determination of whether qualified or statutory
immunity bars a civil action is one of law for the court to determine. Therefore, unless there
is a bona fide dispute as to the foundational or historical facts that underlie the immunity
determination, the ultimate questions of statutory or qualified immunity are ripe for
summary disposition.” Syllabus Point 1, Hutchison v. City of Huntington, 198 W. Va. 139,
479 S.E.2d 649 (1996).
5. “If a public officer is either authorized or required, in the exercise of
his judgment and discretion, to make a decision and to perform acts in the making of that
decision, and the decision and acts are within the scope of his duty, authority, and
jurisdiction, he is not liable for negligence or other error in the making of that decision, at
the suit of a private individual claiming to have been damaged thereby.” Syllabus Point 4,
Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).
6. “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.” Syllabus Point 6, Clark v.
Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).
ii
7. “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 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).
iii
WALKER, Justice:
In April 2022, the Circuit Court of Kanawha County denied a motion by the
Department of Human Services 1 to dismiss two counts of A.R.’s 2 amended complaint, in
which she alleged that she suffered injuries due to the Department’s negligence. On appeal,
the Department argues that the circuit court erroneously denied its motion because it is
qualifiedly immune from claims of negligence. A.R. responds that she has alleged more
than mere negligence; she has alleged violations of clearly established statutory or
constitutional rights or laws. But that is the not the case. Having carefully reviewed the
amended complaint, we do not see that A.R. has alleged a violation of a clearly established
statutory or constitutional right or law by the Department. Consequently, we reverse that
part of the circuit court’s order denying the Department’s motion to dismiss Counts VI
(negligence) and VII (negligent hiring/supervision) and remand this matter for further
proceedings.
1
Pursuant to West Virginia Code § 5F-2-1a, the agency formerly known as the West
Virginia Department of Health and Human Resources was terminated. It is now three
separate agencies—the Department of Health Facilities, the Department of Health, and the
Department of Human Services. See W. Va. Code § 5F-1-2. At oral argument, Petitioner’s
counsel represented that Petitioner is now the Department of Human Services.
2
We use initials where necessary to protect the identities of those involved in this
case. See W. Va. R. App. P. 40(e).
1
I. FACTUAL AND PROCEDURAL BACKGROUND
In July 2020, A.R. sued Dustin Kinser, a Child Protective Services worker;
the Department; Child Protective Services; and Capitol Hotels, Inc. d/b/a/ Knights Inn in
the Circuit Court of Kanawha County. According to the complaint, A.R. (then, a minor)
“was in a placement approved by CPS,” when, in July 2018, she notified CPS worker
Kinser of “concerns she had about her home life and circumstances.” A.R. alleged that
Kinser used his position with CPS to gain information about her, groom her, and convince
her to leave her allegedly neglectful home for her safety.
A.R. alleged that once with Kinser, he took her to the Knights Inn in
Kanawha City where he used illegal drugs, supplied her with alcohol, and sexually
assaulted her. A.R. also alleged that Kinser later did the same at various homes in Kanawha
County. A.R. alleged that she accompanied Kinser as he performed his work for CPS, and
that he was under the influence of illegal drugs when he did so. She also alleged that Kinser
took her with him to a CPS office in Kanawha County, then used illegal drugs in the parking
lot before entering the office to work. Based on those allegations, A.R. asserted nine
claims. Relevant to this matter, A.R. claimed that she was harmed by the Department’s
negligence, generally, and by its negligent hiring and supervision of Kinser.
The Department moved to dismiss A.R.’s claims, citing A.R.’s failure to
serve pre-suit notice. The court granted that motion and dismissed the Department from
2
the case. Meanwhile, A.R. filed a second suit against the Department only. In January
2021, the Department moved to strike one count of that complaint as duplicative of another
and to dismiss five other counts. While the Department’s motion was pending, A.R.
successfully moved to consolidate the two cases.
In January 2022, A.R. filed an eight-count, amended complaint in the
consolidated cases. 3 A.R. named the Department in seven counts: I. Violation of the Child
Welfare Act; 4 III. Infliction of Emotional Distress; 5 IV. Extreme and Outrageous Conduct;
V. Violations of the West Virginia Human Trafficking Statute; VI. Negligence; VII.
3
An affidavit by one of Kinser’s coworkers, Debora Pigman, was attached to the
amended complaint. As described in the amended complaint, the affidavit “outlines [the
Department’s] knowledge of [Kinser’s] drug use, inappropriate and erratic behavior, prior
allegations of inappropriately interacting with a minor, and information related to prior
reports to Kinser’s supervisors regarding these same issues.” There, Ms. Pigman attested
that it was “common knowledge in the Kanawha County CPS office that Dustin Kinser
was on drugs,” and that the incidents alleged in the amended complaint “highlight[] issues
that have existed for a long time with the background checks and drug screens for DHHR’s
CPS workers.” We have reviewed the affidavit and do not see that it materially adds to the
allegations in the amended complaint, where it is already alleged that “[o]ther West
Virginia DHHR workers and supervisors that worked with Kinser knew of and/or
suspected his drug use and other inappropriate behavior but failed to take action,” and that
the Department inadequately trained Kinser and others; inadequately checked the
backgrounds of Kinser and others; failed to supervise Kinser and others, properly; and
failed to follow policies, procedures, and protocols mandated by the Child Welfare Act.
4
Chapter 49 of the West Virginia Code is known as the “West Virginia Child
Welfare Act.” W. Va. Code § 49-1-101(a) (2015).
5
A.R. later voluntarily dismissed this claim.
3
Negligent Hiring/Supervision; and VIII. Vicarious Liability. In response, the Department
moved to strike portions of the amended complaint and dismiss others. Relevant here, the
Department asserted that it was qualifiedly immune from A.R.’s negligence claims (Counts
VI and VII). A.R. responded that resolution of the Department’s immunity defense was
best left for summary judgment, and that the amended complaint contained allegations that
the Department “violated ‘mandatory’ (not ‘discretionary’) duties required by statutory
mandates and/or violated Constitutional laws” and engaged in “willful, wanton, deceitful,
[and] outrageous conduct . . . .” The court denied the Department’s motion by order entered
on April 20, 2022, reasoning that,
[A.R.] has alleged that the actions (and inactions) of
Defendants involved mandatory, non-discretionary duties and
discovery is in its infancy. Further, [A.R.]’s Complaint
includes, but is not limited to, allegations of “gross negligence,
gross dereliction of duty, willful, wanton, deceitful, outrageous
conduct, all of which clearly establishes [A.R.]’s claims are not
simply based on “mere negligence” as Defendants contend.
Further, assuming, arguendo, that [A.R.’s] Complaint alleged
“mere negligence”, [sic] for Defendants’ “qualified immunity”
defense to bar such claim, it would first need to be clearly
established that the actions (or inactions) of Defendants were
discretionary in nature and not in violation of clearly
established statutory or constitutional laws that a reasonable
person would know, or were not otherwise fraudulent,
malicious, or oppressive.
4
The Department now appeals the circuit court’s order insofar as the court
denied its motion to dismiss Counts VI and Counts VII premised on qualified immunity.6
II. STANDARD OF REVIEW
“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.” 7 “‘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.’” 8 In our de novo review, this Court takes the allegations in the amended
complaint as true, construes them in the light most favorable to A.R., 9 and tests their
sufficiency by the same rubric applied by the circuit court:
“The trial court, in appraising the sufficiency of a
complaint on a Rule 12(b)(6) motion, should not dismiss the
6
Count VIII (Vicarious Liability) against the Department is not at issue in this
appeal.
7
Syl. Pt. 1, W. Va. Bd. of Educ. v. Marple, 236 W. Va. 654, 783 S.E.2d 75 (2015).
8
Syl. Pt. 4, W. Va. State Police, Dep’t of Mil. Affs. & Pub. Safety v. J.H. by &
through L.D., 244 W. Va. 720, 856 S.E.2d 679 (2021) (quoting Syl. Pt. 4, in part, Ewing v.
Bd. of Educ. of Cnty. of Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998)).
9
See Syl., John W. Lodge Distrib. Co. v. Texaco, Inc., 161 W. Va. 603, 245 S.E.2d
157 (1978) (“‘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.’
Syl. pt. 3, Chapman v. Kane Transfer Company, W.Va., 236 S.E.2d 207 (1977) quoting
Conley v. Gibson, 355 U.S. 41, 4546, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).”).
5
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, 236 S.E.2d 207 (1977).[10]
“The plaintiff’s burden in resisting a motion to dismiss is a relatively light one, but he is
required at a minimum to set forth sufficient information to outline the elements of his
claim.” 11
Finally, “[i]mmunities under West Virginia law are more than a defense to a
suit in that they grant governmental bodies and public officials the right not to be subject
to the burden of trial at all,” which is why “in civil actions where immunities are implicated,
the trial court must insist on heightened pleading by the plaintiff.” 12 As a corollary,
[t]he ultimate determination of whether qualified or
statutory immunity bars a civil action is one of law for the court
to determine. Therefore, unless there is a bona fide dispute as
to the foundational or historical facts that underlie the
immunity determination, the ultimate questions of statutory or
qualified immunity are ripe for summary disposition.[13]
Syl. Pt. 2, Mountaineer Fire & Rescue Equip., LLC v. City Nat’l Bank of W. Va.,
10
244 W. Va. 508, 854 S.E.2d 870 (2020).
11
Price v. Halstead, 177 W. Va. 592, 594, 355 S.E.2d 380, 383 (1987).
Hutchison v. City of Huntington, 198 W. Va. 139, 148, 149, 479 S.E.2d 649, 658,
12
659 (1996).
13
Syl. Pt. 1, id.
6
III. ANALYSIS
The Department argued to the circuit court, and now to this Court, that it is
qualifiedly immune from Counts VI and VII of the amended complaint because those are
negligence claims arising from discretionary, governmental functions. A.R. responds that
she has alleged that the Department failed to meet its obligations under the West Virginia
Constitution, state and federal law, and its own policies and procedures, so that the circuit
court did not err in denying the Department’s motion to dismiss those counts. The
Department replies that A.R. has failed to allege that its acts or omissions (rather than
Kinser’s) violated a clearly established statutory or constitutional right or law, so these
counts cannot survive its qualified immunity defense. Following a plenary review of the
amended complaint and the parties’ arguments, we concur with the Department that Counts
VI and VII fail to state claims against it for which relief may be granted.
A. A.R.’s Negligence Claims
To better understand the parties’ arguments, we pause to examine Counts VI
(negligence) and VII (negligent hiring/supervision) of the amended complaint. To state a
claim for negligence, a plaintiff must allege that a defendant has negligently breached a
duty owed. 14 In the most general terms, and at the very least, the plaintiff must allege how
14
Syl. Pt. 3, Wheeling Park Comm’n v. Dattoli, 237 W. Va. 275, 787 S.E.2d 546
(2016) (“‘In order to establish a prima facie case of negligence in West Virginia, it must
7
the defendant allegedly harmed her. Surveying the amended complaint for A.R.’s theories
as to how the Department—not Kinser—injured her, we see claims that the Department
was negligent in that it allegedly violated the Child Welfare Act and related policies (Count
VI) 15 and that it failed to hire, train, and supervise Kinser and others with reasonable care
(Count VII). 16 In view of the Department’s qualified immunity defense, both claims are
problematically pleaded. Count VII is pleaded as a negligence claim. As discussed below,
the Department is immune from claims of mere negligence arising from discretionary,
governmental functions including hiring, training, and supervision. And as to Count VI,
be shown that the defendant has been guilty of some act or omission in violation of a duty
owed to the plaintiff. No action for negligence will lie without a duty broken.’ Syl. pt. 1,
Parsley v. Gen. Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981).”).
15
A.R. casts a wider net with general allegations that the Department “failed to
perform their mandatory statutory duties and failed to follow proper procedures, policies,
and protocols mandated by the Child Welfare Act.” But A.R. does not allege in Count VI
how the Department did that; that is, A.R. does not allege in Count VI what the Department
did or did not do that violated “mandatory statutory duties and . . . proper procedures,
policies, and protocols mandated by the Child Welfare Act.”
16
For example, in paragraph 14 of the amended complaint, A.R. alleges that the
Department “failed to properly supervise [Kinser] to prevent or to stop his actions.” In
paragraph 17, A.R. alleges that the Department “failed to conduct an adequate background
[sic] of Dustin Kinser prior to employing him as a CPS worker and prior to providing him
with the authority and detailed information he used to perpetrate his actions on A.R.” In
paragraph 18, A.R. alleges that the Department “failed to conduct adequate drug testing
and screening that would have revealed Kinser was actively using illegal drugs including
methamphetamine.”
8
we do not see that A.R. has alleged how the Department (not Kinser) violated that Act. 17
So, we are left to infer that when it comes to the Department, A.R.’s theory of liability is
that the Department’s hiring, training, and supervision of Kinser and others violated the
Child Welfare Act and related policies.
A.R. makes those allegations against the Department, directly. She has not
included a Department supervisor (by name or as a John or Jane Doe) as a party in the
amended complaint. We dealt with a similar scenario in West Virginia Regional Jail &
Correctional Facility Authority v. A.B., where the plaintiff alleged a claim of negligent
hiring/supervision/retention against the West Virginia Regional Jail and Correctional
Facility Authority. 18 There, as we do here, the Court first questioned the nature of that
theory of negligence when lodged against a state agency, directly. We explained,
it is of no consequence to our analysis that the parties
characterize this as a “direct” claim against the WVRJCFA; in
fact, this claim too is based on vicarious liability despite the
absence of specifically named “bad actor(s)” who allegedly
negligently supervised, trained, and retained D.H. . . . This
17
Count I is pleaded against all defendants. It is entitled, “Violations of the Child
Welfare Act West Virginia DHHR.” There, in paragraph 26, A.R. alleges “[t]he
Defendants breached their mandatory duties, by, among other things:” The allegation ends
there, with paragraph 27 commencing, “[t]he Defendants [sic] violations of the Child
Welfare Act constituted gross dereliction of their mandatory duties . . . .” Noticeably absent
are the expected allegations of how the Department breached its allegedly mandatory duties
under the Act and how those alleged breaches harmed A.R.
18
W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 513, 766 S.E.2d
751, 772 (2014).
9
claim does not present a scenario where some general duty was
statutorily or otherwise imposed upon the State or where the
negligence alleged in the complaint cannot be traced to a
particular individual(s). The training, supervision, and
retention of D.H. unquestionably fell to some public officer(s)
or employee(s), from whose alleged negligence respondent’s
claim derives. However, because respondent did not name a
specific individual defendant with respect to this claim coupled
with the voluntary dismissal of the claim against “John Doe,”
we are faced only with the issue of whether immunity bars such
a claim against the State in accordance with the principles
previously and herein enunciated.[19]
That is the case, here. A.R. has not named a “bad actor” who, on the
Department’s behalf, allegedly failed to hire, train, or supervise Kinser and others,
properly. Regardless, those functions “unquestionably fell to some public officer(s) or
employee(s), from whose alleged negligence [A.R.’s] claim derives.” 20 So, as in A.B., we
conclude that A.R.’s “direct” claim against the Department is, “in fact, . . . based on
vicarious liability despite the absence of specifically named ‘bad actor(s),’” and our
analysis proceeds as such.
19
Id. (internal note omitted).
20
Id.
10
B. Qualified Immunity
With that clarification made, we return to qualified immunity. As we have
held,
[i]f a public officer is either authorized or required, in
the exercise of his judgment and discretion, to make a decision
and to perform acts in the making of that decision, and the
decision and acts are within the scope of his duty, authority,
and jurisdiction, he is not liable for negligence or other error in
the making of that decision, at the suit of a private individual
claiming to have been damaged thereby.[21]
From that individual officer’s immunity, it follows 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.[22]
If it is determined that the “governmental acts or omissions which give rise
to a cause of action fall within the category of discretionary functions,” the qualified
immunity analysis continues, and the
21
Syl. Pt. 4, Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).
22
Syl. Pt. 6, id. (emphasis added).
11
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 absence of such a showing, both the State and its
officials or employees charged with such acts or omissions are
immune from liability.[23]
We recently distilled these syllabus points into this analysis:
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 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.[24]
23
Syl. Pt. 11, A.B., 234 W. Va. at 492, 766 S.E.2d at 756.
24
W. Va. Reg’l Jail & Corr. Facility Auth. v. Est. of Grove, 244 W. Va. 273, 283,
852 S.E.2d 773, 783 (2020).
12
There is no dispute, here, that the Department is a state agency, no insurance
policy waives the defense of qualified immunity, and the West Virginia Governmental Tort
Claims and Insurance Reform Act would not apply. So, we proceed to step (4): whether
the matter involves discretionary judgments, decisions, and/or actions.
This Court has consistently found training and supervision to be
discretionary governmental functions:
the broad categories of training, supervision, and employee
retention, as characterized by respondent, easily fall within the
category of “discretionary” governmental functions. Accord
Stiebitz v. Mahoney, 144 Conn. 443, 134 A.2d 71, 73 (1957)
(the duties of hiring and suspending individuals require “the
use of a sound discretion”); McIntosh v. Becker, 111
Mich.App. 692, 314 N.W.2d 728, 729 (1981) (school board
immune for negligent hiring and supervision); Gleason v.
Metro. Council Transit Operations, 563 N.W.2d 309, 320
(Minn.Ct.App.1997) (claims for negligent supervision, hiring,
training and retention are immune as discretionary acts); Doe
v. Jefferson Area Local Sch. Dist., 97 Ohio App.3d 11, 646
N.E.2d 187 (1994) (school board is immune from negligent
hiring and supervision claims); Dovalina v. Nuno, 48 S.W.3d
279, 282 (Tex.App.2001) (hiring, training, and supervision
discretionary acts); Uinta Cnty. v. Pennington, 286 P.3d 138,
145 (Wyo.2012) (“hiring, training, and supervision of
employees involve the policy judgments protected by the
discretionary requirement”).[25]
25
A.B., 234 W. Va. at 514, 766 S.E.2d at 773.
13
We have found hiring to be a discretionary, governmental function, too.26
Here, A.R. alleges that the Department failed to hire, train, and supervise
Kinser and others, properly—alleged omissions that, in accord with A.B., “fall within the
category of discretionary functions.” 27 So, we proceed to step (5) of the qualified immunity
analysis: whether the amended complaint contains allegations that the Department hired,
trained, or supervised in such a way as to violate A.R.’s “clearly established statutory or
constitutional rights or laws of which a reasonable person would have known or are
otherwise fraudulent, malicious, or oppressive . . . .” 28
26
See Marple, 236 W. Va. at 663, 783 S.E.2d at 84 (hiring and employee retention
are discretionary functions); W. Va. Div. of Corr. v. Jividen, No. 14-0368, 2015 WL
1741483, at *4 (W. Va. Apr. 10, 2015) (memorandum decision) (hiring, training, and
supervision of corrections officer are discretionary government functions).
27
Syl. Pt. 11, in part, A.B., 234 W. Va. at 492, 766 S.E.2d at 751. In A.B., we
observed that “a broadly-characterized governmental action or function may fall under the
umbrella of a ‘discretionary’ function; but within this discretionary function there are
nonetheless particular laws, rights, statutes, or regulations which impose ministerial duties
on the official charged with these functions” Id. at 514, 766 S.E.2d at 773. A.R. has not
pointed the Court to “particular laws, rights, statutes, or regulations which impose
ministerial duties,” id. (emphasis added), on the Department to, for example, conduct
background checks.
28
Syl. Pt. 11, id. As to the latter part of this standard—“otherwise fraudulent,
malicious, or oppressive”—we do not understand A.R. to respond that the Department’s
alleged acts or omissions were fraudulent or malicious, so that it is not entitled to qualified
immunity. Assuming that such is even possible, see, e.g., State ex rel. W. Va. Atty.-Gen’l,
Medicaid Fraud Control Unit v. Ballard, 249 W. Va. 304, __ n.19, 895 S.E.2d 159, 178
14
We elaborated on that step in Hutchison, highlighting the various facets of
what is often the breakpoint of the qualified immunity analysis:
[t]he threshold inquiry is, assuming that the plaintiff’s
assertions of facts are true, whether any allegedly violated right
was clearly established. To prove that a clearly established
right has been infringed upon, a plaintiff must do more than
allege that an abstract right has been violated. Instead, the
plaintiff must make a “particularized showing” that a
“reasonable official would understand that what he is doing
violated that right” or that “in the light of preexisting law the
unlawfulness” of the action was “apparent.” Anderson v.
Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97
L.Ed.2d 523 (1987). Indeed, some courts hold that an “official
may not be charged with knowledge that his or her conduct was
unlawful unless it has been previously identified as such.”
Warner v. Graham, 845 F.2d 179, 182 (8th Cir.1988). But, for
a right to be clearly established, it is not necessary that the very
actions in question previously have been held unlawful.
Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. at 3039. To
define the law in question too narrowly would be to allow
defendants “to define away all potential claims.” Kelley v.
Borg, 60 F.3d 664, 667 (9th Cir.1995).
Of course, “a necessary concomitant to the
determination of whether the constitutional [or statutory] right
asserted by the plaintiff is ‘clearly established’ at the time the
[public official] acted is the determination of whether the
n.19 (2023), it would not negate the Department’s claim to qualified immunity in this case.
As the Department points out, fraud-like allegations in the amended complaint are tied to
Kinser, e.g., “Defendant Kinser used his position as a child protective services worker with
the [Department] to identify, groom, and unlawfully abduct A.R. from her home.” While
that allegation mentions the Department, the alleged acts are Kinser’s.
Of course, we have recognized that State agencies may be vicariously liable for the
fraudulent, malicious, or oppressive act of an employee taken in the scope of his
employment. See Syl. Pt. 12, A.B., 234 W. Va. at 492, 766 S.E.2d at 751. As noted above,
Count VIII (Vicarious Liability) against the Department is not at issue in this appeal.
15
plaintiff has asserted a violation of a constitutional [or
statutory] right at all.” Siegert v. Gilley, 500 U.S. 226, 232, 111
S.Ct. 1789, 1792, 114 L.Ed.2d 277 (1991). Moreover, the right
the official is alleged to have violated must be specific in
regard to the kind of action complained of for the constitutional
or statutory right at issue to have been clearly established.
When dealing with broad rights, the plaintiff bears the burden
of particularizing such a right before those rights are subject to
the qualified immunity test of being clearly established. Thus,
where a plaintiff’s complaint, even when accepted as true does
not state a cognizable violation of constitutional or statutory
rights, then the plaintiff’s claim fails. If the complaint fails to
allege a cognizable violation of constitutional or statutory
rights it also has failed to state a claim upon which relief can
be granted.[29]
Looking once again to the amended complaint, we see that A.R. has alleged,
generally, that the Department “failed to perform [its] mandatory statutory duties and failed
to follow proper procedures, policies and protocols mandated by the Child Welfare Act
codified in W.Va. Code Chapter 49 to prevent injury and harm to A.R.” We found a similar
allegation wanting in B.R. v. West Virginia Department of Health and Human Resources. 30
There, the plaintiff claimed that she was harmed by the Department’s failure, among others,
to “keep her safe and secure,” which she alleged violated “‘clearly established West
29
Hutchison, 198 W. Va. at 149 n.11, 12, 479 S.E.2d at 659 n.11, 12.
B.R. v. W. Va. Dep’t of Health & Hum. Res., No. 17-0564, 2018 WL 2192480, at
30
*2 (W. Va. May 14, 2018) (memorandum decision).
16
Virginia constitutional, statutory, and legal rights.’” 31 We concluded that the plaintiff’s
“broad assertion” did “not extend her cause of action beyond that which is plainly asserted;
namely, negligence.” 32 Similarly, in R.Q. v. West Virginia Division of Corrections, we
affirmed dismissal of a negligent supervision and retention claim on qualified immunity
grounds; there “[p]etitioner did not identify a single policy, procedure, rule, regulation, or
statute that the DOC violated,” so that he “failed to establish what the DOC did or failed
to do that it would have reasonably understood was unlawful with regard to its supervision,
retention, and training” of the subject officer. 33
The allegations in the amended complaint, taken as true, narrate a dismal
series of events. That said, the objective tragedy of the allegations (again, if taken as true)
does not determine the question of the Department’s qualified immunity from A.R.’s
negligence claims. To overcome the Department’s qualified immunity, A.R. had to “do
more than allege that an abstract right has been violated;” she had to allege that the
Department did or failed to do something that it would have reasonably understood to be
unlawful. Sweeping and vague allegations of violations of the Child Welfare Act and
31
Id.
32
Id.
R.Q. v. W. Va. Div. of Corr., No. 13-1223, 2015 WL 1741635, at *5 (W. Va. Apr.
33
10, 2015) (memorandum decision).
17
unnamed policies and procedures do not accomplish that. Were it otherwise, allegations
like A.R’s would “grossly oversimplif[y], and frankly nullif[y],” that step of the qualified
immunity analysis pertaining to the violation of clearly established statutory or
constitutional rights or laws. 34 For those reasons, we conclude that the circuit court erred
in denying the Department’s motion to dismiss Counts VI and VII of the amended
complaint.
Seeking to fill the gaps in her amended complaint, A.R. now points to various
laws and policies she claims the Department violated. For example, A.R. contends that the
274-page, “Child Protective Services Policy,” 35 and the legal authorities it draws upon,36
are clearly established rights “incorporated into the Amended Complaint” and applicable
34
A.B., 234 W. Va. at 517, 766 S.E.2d at 776. A.R.’s fleeting reference in her
response to West Virginia Code §§ 49-1-105 and 49-2-101 only underscores this point.
Section 49-2-101 sets forth the Bureau for Social Services’ general authority and
responsibilities. And in section 49-1-105, the Legislature set forth the purpose of the
entirety of Chapter 49. A.R.’s reference to § 49-1-105 is no different than alleging a
violation of the Child Welfare Act, in toto—an allegation we have explained is too
imprecise to defeat the Department’s claim to qualified immunity.
35
W. Va. Dep’t of Health & Hum. Res., Child Protective Serv. Pol. (rev’d Dec.
2018), https://dhhr.wv.gov/bcf/policy/Documents/child%20Protective%20Services%20
Policy.pdf (last visited Jan. 19, 2024).
36
According to A.R., these include the Child Protective Services Policy, itself, the
Foster Care Policy, Adoption Policy, Chapter 48 of the West Virginia Code (“Domestic
Relations”), the Child Welfare Act, and the Rules of Procedure for Child Abuse and
Neglect Proceedings.
18
“to all Department employees statewide.” But that contention does not assist the Court in
determining whether the allegations in the amended complaint surmount the Department’s
qualified immunity defense. Similar to A.R.’s allegation that the Department violated the
Child Welfare Act, A.R.’s invocation of the entire Child Protective Services Policy
“grossly oversimplifies, and frankly nullifies” 37 the requirement of a clearly established
constitutional or statutory right or law. Simply stated, expansive references to entire
chapters of the West Virginia Code, to “federal and state laws,” and to a 274-page policy
are insufficiently particular to allow a court to determine (1) whether a plaintiff has alleged
a violation of a statutory or constitutional right or law, 38 and (2) whether such right or law
is clearly established. 39
37
A.B., 234 W. Va. at 517, 766 S.E.2d at 776. A.R.’s passing reference to “federal
and state laws” is similarly unhelpful. See Carr v. Veach, 244 W. Va. 73, 78 n.3, 851
S.E.2d 519, 524 n.3 (2020) (“a skeletal argument, really nothing more than an assertion,
does not preserve a claim”) (cleaned up).
38
Hutchison, 198 W. Va. at 149 n.12, 479 S.E.2d at 659 n.12 (noting that “a
necessary concomitant to the determination of whether the constitutional or statutory right
asserted by the plaintiff is ‘clearly established’ at the time the public official acted is the
determination of whether the plaintiff has asserted a violation of a constitutional or
statutory right at all”) (cleaned up).
39
The Court is not obligated to exhaust itself speculating as to what particular
provisions of the Child Welfare Act, the Child Protective Services Policy, and federal and
state laws A.R. argues the Department has violated and in what fashion. See Syl. Pt. 13, in
part, A.B., 234 W. Va. at 492, 766 S.E.2d at 751 (“Courts cannot concoct or resurrect
arguments neither made nor advanced by the parties.”).
19
Petitioner’s references to the Human Rights Act, 40 the Human Trafficking
Act, 41 and Article 3, § 10 of the West Virginia Constitution 42 also fail to overcome the
Department’s qualified immunity defense. In the amended complaint, A.R. alleged that
Kinser and Capitol Hotels violated the Human Rights Act—not the Department. Still, in
her response before this Court, A.R. asserts that the Department did, too. Yet, A.R. does
not explain how the Department violated the Human Rights Act, or how any alleged
violation of the Human Rights Act by the Department (rather than Kinser) injured her. 43
Similarly, A.R. does not allege how the Department (rather than Kinser) violated the
Human Trafficking Act, or, again, how that violation injured her. 44 A.R. did not allege a
violation of her rights under the West Virginia Constitution in the amended complaint, yet
she states in her response brief that the Department violated her right to “bodily integrity,
safety, and well-being” under article 3, § 10 of the West Virginia Constitution. In making
40
W. Va. Code §§ 5-11-1 to 20. Effective February 8, 2024, the West Virginia
Human Rights Act is recodified at West Virginia Code §§ 16B-17-1 to 16B-17-20. See
Act effective Feb. 8, 2024, 2024 W.Va. Laws S.B. 300.
41
Id. §§ 61-14-1 to 9.
42
W. Va. Const. art. III, § 10 (“No person shall be deprived of life, liberty, or
property, without due process of law, and the judgment of his peers.”).
43
See Crouch v. Gillispie, 240 W. Va. 229, 237, 809 S.E.2d 699, 707 (2018) (no
violation of a clearly established statutory or constitutional law where plaintiff failed to
demonstrate that alleged violation of internal guideline bore “any causal relation to the
ultimate injury”).
44
See id.
20
that assertion, A.R. does not allege how the Department—not Kinser—committed such
violations, and how those violations resulted in her injury.
A.R. also points to the West Virginia Division of Personnel’s Drug- and
Alcohol-Free Workplace Policy, 45 claiming that it imposes a duty on the Department to
investigate an allegation that an employee is abusing illegal substances. A.R. did not
identify this policy in the amended complaint. More problematically, A.R. relies on a
portion of the policy that states that “[w]hen reasonable suspicion exists that” an employee
has reported to work under influence, “the individual may be subject to assessment and
disciplinary action . . . .” That language speaks to discretion, not mandated action, so
A.R.’s reliance on it to overcome the Department’s qualified immunity defense is
misplaced. 46
45
W. Va. Div. of Pers., Drug- and Alcohol-Free Workplace Pol. (rev’d Dec. 18,
2020) https://personnel.wv.gov/SiteCollectionDocuments/Policies/DrugFree.pdf (last
visited Jan. 29, 2024).
46
In certain cases where a plaintiff has failed to offer a heightened pleading in
response to a governmental immunity defense, we have remanded the matter to permit the
plaintiff to do so. See, e.g., Doe v. Logan Cnty. Bd. of Educ., 242 W. Va. 45, 50, 829 S.E.2d
45, 50 (2019) (observing that “the Court in Hutchison offered remedies for situations where
a public entity or official asserts immunity in an answer but the plaintiff has failed to file a
‘heightened pleading’”). A.R. informs the Court that “[t]he Amended Complaint has
pleaded the best case possible, and there is no need for more detailed pleadings.” Cf.
Hutchison, 198 W. Va. at 150, 479 S.E.2d at 660 (advising that “if the individual
21
IV. CONCLUSION
For the reasons discussed above, that part of the circuit court’s order entered
April 20, 2022, denying the Department’s motion to dismiss Counts VI and VII of the
amended complaint is reversed. This case is remanded to the circuit court for further
proceedings consistent with this Opinion.
Reversed in part and remanded.
circumstances of the case indicate that the plaintiff has pleaded his or her best case, there
is no need to order more detailed pleadings”).
22