W. Va. Reg'l Jail & Corr. Facility Auth. v. A.B.

Citation766 S.E.2d 751,234 W.Va. 492
Decision Date18 November 2014
Docket NumberNo. 13–0037.,13–0037.
CourtSupreme Court of West Virginia
PartiesWEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY, an agency of the State of West Virginia, Defendant Below, Petitioner v. A.B., Plaintiff Below, Respondent.

234 W.Va. 492
766 S.E.2d 751

WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY, an agency of the State of West Virginia, Defendant Below, Petitioner
A.B., Plaintiff Below, Respondent.

No. 13–0037.

Supreme Court of Appeals of West Virginia.

Rehearing Granted June 10, 2014.
Submitted Upon Rehearing June 10, 2014.

Decided Oct. 31, 2014.

Nov. 18, 2014.

M. Andrew Brison, Esq., Anspach Meeks Ellenberger LLP, Charleston, WV, for Petitioner.

Lonnie C. Simmons, Esq., Ditrapano, Barrett, Dipiero, McGinley & Simmons, PLLC, Charleston, WV, David M. Hammer, Esq., Hammer, Ferretti & Schiavoni, Martinsburg, WV, for Amicus Curiae.

American Civil Liberties Union of West Virginia Foundation, National Association for Women, National Association Of Social Workers, West Virginia Division, West Virginia Council of Churches, West Virginia Employment Lawyers Association, WV Free, and West Virginia Association for Justice.

Kerry A. Nessel, Esq., The Nessel Law Firm, Michael A. Woelfel, Esq., Huntington, WV, for Respondent.


WORKMAN, Justice:

234 W.Va. 498

The West Virginia Regional Jail and Correctional Facility Authority (hereinafter “the WVRJCFA”) appeals the December 3, 2012, order of the Circuit Court of Kanawha County denying its motion for summary judgment on qualified immunity grounds. The circuit court found that the WVRJCFA was not entitled to qualified immunity because 1) disputed issues of material fact precluded a determination as to whether the WVRJCFA is vicariously liable for the alleged sexual assaults committed by its employee; and 2) respondent's claims of negligent supervision, training, and retention do not encompass discretionary decisions in the administration of fundamental government policy. The WVRJCFA appealed and this Court reversed and remanded for entry of an order granting it summary judgment, finding that it was entitled to qualified immunity. Following review of respondent's petition for rehearing, along with the amicus curiae's brief in support of rehearing,1 we concluded that justice required us to revisit the legal issues presented and attendant public policy concerns raised by our initial opinion.

Upon further review of the briefs, the appendix record, the arguments of the parties, the amicus curiae, and the applicable legal authority, we again find that the WVRJCFA is entitled to immunity under the circumstances here present; therefore, we reverse the order of the circuit court and remand the case for entry of an order granting summary judgment and dismissing the action against it.


Respondent/plaintiff below, A.B. (hereinafter “respondent”), was convicted in 2006 of two counts of third degree sexual assault for having intercourse with her boyfriend's fourteen-year-old son; she was sentenced to one to five years for each count, to run consecutively. Respondent was paroled in August 2008, but violated her parole and was reconfined. She was booked into the Southern Regional Jail in September, 2009. Respondent alleges that beginning in October, 2009 while housed at the Southern Regional Jail, she was vaginally and orally raped seventeen times by Correctional Officer D.H. (a non-participant in this appeal), who denies all allegations of sexual contact with respondent. In particular, respondent alleges that D.H. raped her in various commonly accessible areas of the jail including the video arraignment room and property room. On November

766 S.E.2d 758
234 W.Va. 499

2, 2009, shortly after the alleged sexual assaults commenced, D.H. filed an incident report against respondent indicating that she had improperly propositioned him, asking if he would be willing to “trade a favor for a favor” in exchange for “anything.”

On November 23, 2009, a fellow inmate in transit to a court hearing advised Sgt. Michael Francis and Correctional Officer Brian Ewing that respondent and others had assaulted her in the pod, resulting in a black eye; she further advised that respondent and Correctional Officer D.H. were having a sexual relationship. Sgt. Francis and C.O. Ewing each filed incident reports with their superior, Lt. Bunting. Lt. Bunting convened a meeting between Sgt. Francis, C.O. Ewing, and D. H., to advise D.H. of the allegations. C.O. Ewing testified in his deposition that D.H. responded to the allegations with “a snicker, you know, like, you know I can't believe that” and that Francis responded, “I knew when I heard it was your name, it wasn't you.” No further investigation was conducted and respondent was never questioned about the allegations of sexual contact between her and D. H.2 It is undisputed that respondent never reported any inappropriate conduct by D.H. D.H. testified that he received yearly training on prison rape and that he was aware that sexual contact with inmates was forbidden. Respondent remained at the Southern Regional Jail until April, 2010, when she was transferred to Lakin Correctional Center.

Respondent filed suit against D.H. and the WVRJCFA. As against D. H., individually, respondent alleged 1) violation of 42 U.S.C. § 19833 and the West Virginia Governmental Tort Claims and Insurance Reform Act; 2) intentional infliction of emotional distress; and 3) a variety of common law intentional torts. The claim by respondent also named a “John Doe” employee of the WVRJCFA, who “negligently allowed” the conduct of D. H., but that claim was subsequently voluntarily dismissed by respondent.

As against the WVRJCFA, respondent alleged only vicarious liability and negligence-based claims; specifically respondent alleged negligent hiring, retention, supervision, staffing, and training. It is important to note that the complaint expressly asserted that it was making no claims against the WVRJCFA under Section 1983 or for intentional infliction of emotional distress. Furthermore, during the pendency of the matter, respondent agreed to voluntarily dismiss her claims against the WVRJCFA for negligent hiring, invasion of privacy, and violation of the Tort Claims Act.4 Critically, respondent also voluntarily dismissed all West Virginia Constitutional violations and any Section 1983 claims (which were expressly not pled in the complaint in the first instance), leaving only negligence-based claims for supervision, training, and retention against the WVRJCFA. Moreover, although not expressly dismissed, no further mention of the civil conspiracy claim was made in the pleadings below, nor was any evidence adduced regarding a “conspiracy” involving the alleged cover-up of sexual assaults within the regional jail system.5 Rather, the record clearly reflects that these allegations were

766 S.E.2d 759
234 W.Va. 500

reported, documented, and investigated at least to some degree.

At the close of discovery, the WVRJCFA moved for summary judgment on the basis of qualified immunity, arguing 1) that it could not be held vicariously liable for the intentional, illegal acts of its employee and respondent had not demonstrated a “clearly established” right which the WVRJCFA violated; and 2) respondent's negligence claims were barred because they involved the discretionary decisions involving the administration of a fundamental government policy. Respondent contended that 1) the WVRJCFA was vicariously liable for the acts of D.H. because the sexual assaults were within the scope of his employment; 2) the WVRJCFA, through its employee, violated West Virginia Code § 61–8B–10 (Repl. Vol. 2014)6 and the federal Prison Rape Elimination Act of 2003;7 and 3) the allegedly negligent acts of the WVRJCFA were neither “administrative” nor involved “fundamental governmental policy.” Importantly, D.H. did not assert that he is entitled to qualified immunity; therefore, he remains a party defendant in the litigation below.8 The circuit court agreed with respondent and denied summary judgment. The circuit court's order specifically found that 1) disputed issues of material fact precluded a determination as to whether the WVRJCFA was vicariously liable for the alleged sexual assaults committed by its employee; and 2) respondent's claims of negligent supervision, training, and retention do not encompass “discretionary decisions in the administration of fundamental government policy.” This appeal followed.


It is well-established that “[t]his Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002). Moreover, “[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). This review, however, is guided by the following principle regarding immunity:

[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

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