W.Va. Div. of Nat. Res. v. Dawson, 18-0026
| Court | Supreme Court of West Virginia |
| Writing for the Court | JUSTICE JENKINS delivered the Opinion of the Court. |
| Docket Number | No. 18-0026,18-0026 |
| Parties | WEST VIRGINIA DIVISION OF NATURAL RESOURCES, JERRY JENKINS, BRADFORD DEBORD, AND STEPHEN ANTOLINI, Defendants Below, Petitioners v. STEVEN DAWSON AND ANGELA DAWSON, Plaintiffs Below, Respondents |
| Decision Date | 03 June 2019 |
WEST VIRGINIA DIVISION OF NATURAL RESOURCES,
JERRY JENKINS, BRADFORD DEBORD, AND STEPHEN ANTOLINI, Defendants Below, Petitioners
v.
STEVEN DAWSON AND ANGELA DAWSON, Plaintiffs Below, Respondents
No. 18-0026
SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2019 Term
Submitted: March 13, 2019
June 3, 2019
Appeal from the Circuit Court of Hampshire County
The Honorable C. Carter Williams, Judge
Civil Action No. 15-C-80
AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED
Keith C. Gamble
Nathan A. Carroll
Pullin, Fowler, Flanagan, Brown &
Poe, PLLC
Morgantown, West Virginia
Attorneys for the Petitioners
Jerry D. Moore
Jared T. Moore
The Moore Law Firm, PLLC
Franklin, West Virginia
Attorneys for the Respondents
JUSTICE JENKINS delivered the Opinion of the Court.
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SYLLABUS BY THE COURT
1. "'A circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the "collateral order" doctrine.' Syl. Pt. 2, Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d 660 (2009)." Syllabus point 1, City of Saint Albans v. Botkins, 228 W. Va. 393, 719 S.E.2d 863 (2011).
2. "'This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.' Syllabus Point 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 576 S.E.2d 807 (2002)." Syllabus point 2, West Virginia State Police v. Hughes, 238 W. Va. 406, 796 S.E.2d 193 (2017).
3. "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).
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4. "'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).
5. "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).
6. "If the plaintiff identifies a clearly established right or law which has been violated by the acts or omissions of the State, its agencies, officials, or employees, or
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can otherwise identify fraudulent, malicious, or oppressive acts committed by such official or employee, the court must determine whether such acts or omissions were within the scope of the public official or employee's duties, authority, and/or employment. To the extent that such official or employee is determined to have been acting outside of the scope of his duties, authority, and/or employment, the State and/or its agencies are immune from vicarious liability, but the public employee or official is not entitled to immunity in accordance with State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992) and its progeny. If the public official or employee was acting within the scope of his duties, authority, and/or employment, the State and/or its agencies may be held liable for such acts or omissions under the doctrine of respondeat superior along with the public official or employee." Syllabus point 12, West Virginia Regional Jail & Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).
7. "A government employer implicates its employee's liberty interest in his/her good name when the following elements are alleged: (1) a stigmatizing statement; (2) which was false; (3) was published, or made accessible to the public; (4) in connection with a serious adverse employment action. When these elements are met, the employee must be afforded procedural safeguards under Article III, Section 10 of the West Virginia Constitution." Syllabus point 6, West Virginia Department of Education v. McGraw, 239 W. Va. 192, 800 S.E.2d 230 (2017).
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Jenkins, Justice:
The Petitioners, the West Virginia Division of Natural Resources ("the DNR"); and Jerry Jenkins ("Col. Jenkins"),1 Bradford DeBord ("Maj. DeBord"),2 and Stephen Antolini ("Sgt. Antolini")3 (collectively "the DNR employees"), appeal a December 8, 2017 order of the Circuit Court of Hampshire County that denied their motion for summary judgment on the ground of qualified immunity. In the underlying civil action filed by Respondent, Steven Dawson ("Mr. Dawson")4, Mr. Dawson alleged that his former employer, the DNR, and its employees, Col. Jenkins, Maj. DeBord, and Sgt. Antolini, "committed alleged acts of defamation, false light, infringement of a liberty interest without due process, and reckless infliction of emotional distress, along with claims of loss of consortium and punitive damages." On the DNR's and the DNR employees' motion for summary judgment asserting qualified immunity, the circuit court found that there is a genuine issue of material fact as to whether Mr. Dawson's liberty interest was implicated, and, if so, whether he was afforded due process; whether the DNR and the DNR employees were in violation of Mr. Dawson's clearly established rights of which a reasonable person
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would have known; whether the DNR and the DNR employees acted maliciously in their investigation of Mr. Dawson; and whether the actions of the DNR employees were within the scope of their employment.
On appeal, the DNR and the DNR employees raise the following issues: (1) the circuit court erred by failing to find qualified immunity because (a) there is no evidence of a violation of any clearly established statutory or constitutional right or law of which a reasonable person would have known, and (b) there is no evidence of conduct on behalf of the DNR and the DNR employees that could be characterized as fraudulent, malicious, or oppressive; (2) no genuine issues of material fact existed, and no reasonable juror could find the DNR employees acted outside their official capacity as DNR officers; and (3) the circuit court improperly found that the DNR and the DNR employees' motion for summary judgment, filed after the close of discovery, was inconsistent with the provisions of Maston v. Wagner, 236 W. Va. 488, 781 S.E.2d 936 (2015), which encourages a ruling on qualified immunity early in the proceedings.
Having considered the briefs submitted on appeal, the appendix record, the parties' oral arguments, and the applicable legal authority, we find no error in the circuit court's decision that there are genuine issues of material fact as to whether the DNR and the DNR employees' acts or omissions were fraudulent, malicious, or oppressive and whether the individual DNR employees acted outside of their scope of employment. We further find no error in the circuit court's findings regarding the timing of the motion for
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summary judgment. Therefore, we affirm as to those three issues. However, we find that the Dawsons cannot demonstrate a violation of a clearly established statutory or constitutional right or law of which a reasonable person would have known. Accordingly, we reverse the circuit court's decision as to that issue and direct the circuit court to enter summary judgment in favor of the DNR and the DNR employees as to that issue only and remand for further proceedings consistent with this opinion.
In summer 2014, the DNR was investigating the offenses of illegal bear hunting and prohibited driving of motor vehicles within the Nathanial Mountain Wildlife Management Area ("WMA") in Hampshire County, West Virginia. Mr. Dawson was employed by the DNR as a natural resources police officer. Although Mr. Dawson was assigned to Hardy County, West Virginia, he assisted the Hampshire County investigation at the request of DNR Officer Terry Srout ("Officer Srout"). On September 7, 2014, Officer Srout and Mr. Dawson placed two game-trail cameras in the WMA.5 The cameras were set along trails where they believed there was illegal driving activity. Officer Srout and Mr. Dawson retrieved the cameras on September 21, 2014. One camera, a Moultrie-brand camera (the "Moultrie Camera"), contained eleven photos that showed two vehicles:
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(1) a gray/silver Dodge truck, that the investigating officers determined belonged to Ralph Buckley, and (2) a white Sport Utility Vehicle. Upon inspection of the second camera, a Bushnell-brand camera (the "Bushnell Camera"), it was discovered that the memory card was missing. However, upon further inspection, Officer Srout discovered that the Bushnell Camera did contain twelve photos that were saved to the internal drive. The photos were timestamped, but the dates and times did not correspond with the time the Bushnell Camera had been deployed by Officer Srout and Mr. Dawson. According to...
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