W.Va. Div. of Corr. & Rehab. v. Robbins

Docket Number21-0905,21-0906
Decision Date09 June 2023
PartiesWEST VIRGINIA DIVISION OF CORRECTIONS & REHABILITATION, Defendant Below, Respondent, v. DAMEIN ROBBINS, Plaintiff Below, Respondent. ISAIAH BLANCARTE & BRYON WHETZEL, Defendants Below, Petitioners, v. DAMEIN ROBBINS, Plaintiff Below, Respondent.
CourtWest Virginia Supreme Court



DAMEIN ROBBINS, Plaintiff Below, Respondent.

ISAIAH BLANCARTE & BRYON WHETZEL, Defendants Below, Petitioners,

DAMEIN ROBBINS, Plaintiff Below, Respondent.

Nos. 21-0905, 21-0906

Supreme Court of Appeals of West Virginia

June 9, 2023

Submitted: January 31, 2023

Appeals from the Circuit Court of Hampshire County The Honorable C. Carter Williams, Judge Case No. 20-C-24

Matthew R. Whitler, Esq.



Martinsburg, West Virginia

Counsel for Petitioner

West Virginia Department of Corrections & Rehabilitation

Michael D. Dunham, Esq.

Kathryn V. McCann Slaughter, Esq.

Shuman McCuskey Slicer PLLC

Winchester, Virginia

Counsel for Petitioners

Isaiah Blancarte & Bryon Whetzel

J. Daniel Kirkland, Esq.

Gregory A. Bailey, Esq.

Arnold & Bailey, PLLC

Charles Town, West Virginia

Counsel for Respondent

Damein Robbins


JUSTICE ARMSTEAD concurs in part and dissents in part and reserves the right to file a separate opinion.

JUSTICE BUNN concurs in part and dissents in part reserves the right to file a separate opinion.



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).

4. "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 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).

5. "'An act specifically or impliedly directed by the master, or any conduct which is an ordinary and natural incident or result of that act, is within the scope of the employment.' Syllabus, Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173 (1931)." Syllabus Point 6, Courtless v. Jolliffe, 203 W.Va. 258, 507 S.E.2d 136 (1998).



WALKER, Chief Justice:

Respondent Damein Robbins spent forty-eight hours in the Potomac Highlands Regional Jail in Augusta, West Virginia, in July 2018. He alleges that during that time, fellow inmates sexually assaulted him, sodomized him, forced him to eat feces and drink urine, threatened to kill him, and-during the assault-paraded him through a housing pod in full view of at least one corrections officer. Robbins sued corrections officers Bryon Whetzel and Isaiah Blancarte (the Officers) and West Virginia Division of Corrections and Rehabilitation (DOC) to recover for the injuries he claims to have incurred during those forty-eight hours, punitive damages, and attorneys' fees. The Officers and DOC claimed qualified immunity from Robbins's claims and moved to dismiss the complaint. The circuit court denied those motions, and Petitioners now appeal that ruling via the collateral order doctrine.

We affirm in part and reverse in part the circuit court's order. First, we affirm that part of the order denying the Officers' motion to dismiss. Second, we reverse that part of the order denying DOC's motion to dismiss Robbins's negligent training and supervision claim. Third, as to that part of the order denying DOC's motion to dismiss Robbins's vicarious liability claim, we affirm.



Robbins was committed to the Potomac Highlands Regional Jail on July 20, 2018, for forty-eight hours. Robbins claims that within earshot of other inmates, an unnamed correctional officer elicited from Robbins that he was a sex offender, violating the Prison Rape Elimination Act (PREA).[1] According to Robbins, this substantially increased the possibility that other inmates would harm him. Robbins asserts that other inmates in the misdemeanor pod threatened him, so he asked to be transferred. Robbins claims that jail officials moved him to an interview room, then to felony pod A-6, a segregated housing unit. Robbins alleges that he was told that he would not be allowed out of his cell, nor would other inmates be allowed in it.

Robbins claims that early in the morning of July 22, 2018, Officer Byron Whetzel permitted three inmate-occupants of felony pod A-6 to enter Robbins's cell. The inmates closed the cell door behind them, covered the cell door window and the exterior window with paper, then turned off the lights. According to Robbins, the inmates then began to sexually assault him. Robbins claims that he was (1) sodomized with a broom handle; (2) forced to drink urine; (3) forced to eat feces; (3) threatened with a "makeshift weapon," which the assailants also used to cut off his hair; (4) told "this is what happens to sex offenders;" (5) paraded by his assailants throughout felony pod A-6 to "'show off'" his condition and humiliate him; and (6) threatened with death should he tell anyone of the


assault. Robbins claims that Whetzel saw him being "show[n] off" but did not intervene. Robbins alleges that Officer Isaiah Blancarte was the "rover" in felony pod A-6 during the assault, and that he and Whetzel permitted inmates to roam around the pod together and enter his cell.[2]

Robbins was processed out of the jail late in the afternoon of July 22, 2018. He said nothing when other corrections officers inquired about his injuries, he alleges, because his assailants threatened to kill him should he report the assault. Robbins's wife collected him from the jail then took him to the hospital in Romney, West Virginia. Hours later, Robbins was transferred to a trauma ward at Winchester Medical Center. Robbins alleges that he was hospitalized until July 25, 2018. He claims that his ribs were broken and his orbital bone shattered in the assault.[3]

In July 2020, Robbins sued two "John Doe" corrections officers and the DOC.[4] He asserted three claims against the John Does: (Count I) 42 U.S.C. § 1983 claim predicated on the alleged violation of his rights under the Eighth Amendment to the


United States Constitution (deliberate indifference); (Count II) failure to protect;[5] and (Count III) negligent infliction of emotional distress. He brought two claims against DOC: (Count IV) failure to train and adequately supervise and (Count V[6]) vicarious liability for the violation of his clearly established rights under the Eighth Amendment to the United States Constitution and its counterpart in the West Virginia Constitution, as well as the "fraudulent, malicious, or oppressive" acts of John Doe I and II. Finally, Robbins sought attorneys' fees under 42 U.S.C. § 1988 (Count VI). Robbins amended his complaint in October 2020, dropped the John Doe monikers, and named Blancarte and Whetzel as defendants in their personal and official capacities.

In December 2020, Blancarte and Whetzel filed motions under West Virginia Rule of Civil Procedure 12(b)(6) to dismiss Robbins's claims, arguing qualified immunity. DOC moved to dismiss Robbins's claims against it the next month. DOC asserted that it was qualifiedly immune from Robbins's failure-to-train-and-adequately-supervise claim and his claim for vicarious liability. DOC also argued that Robbins could not collect attorneys' fees from it under 42 U.S.C. § 1988.


The circuit court denied the motions to dismiss in October 2021.[7] The court found that Robbins had been in the care and custody of DOC at relevant times, and that Blancarte and Whetzel acted under the color of law as corrections officers employed by the DOC. The court went on to find that the alleged acts and omissions of Blancarte, Whetzel, and DOC were discretionary. Next, the court found that Robbins had identified a clearly-established constitutional right-freedom from cruel and unusual punishment, guaranteed under the Eighth Amendment to the United States Constitution. The court expressly found that, "with regard to the heightened pleading requirement stated above (and asserted by the Defendants as a basis for dismissing Plaintiff's claims),...

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