The West Virginia Division of Corrections (DOC or the Appellant) appeals from an Order entered by the Circuit Court of Kanawha County, West Virginia, denying its Motion to Dismiss. The motion was based upon qualified immunity and the Appellee's, Frenchie Hess, Jr.'s, failure to exhaust prison remedies as set forth in West Virginia Prisoner Litigation Reform Act, West Virginia Code §§ 25-1A-1 to -8 (2008), prior to filing the instant action. (See footnote 1) Based upon a review of the parties' briefs, the record and all other matters submitted before the Court, the circuit court's decision is affirmed.
[t]he [n]egligence of WVDOC [the Appellant] included, but was not limited to, the following:
a. Failing to ensure that Stevens Correctional Center had the appropriate number of officers for the size of the prison population;
b. Failing to ensure that Stevens Correctional Center had adequate means to ensure the safety of prisoners; and
c. Failing to ensure that Stevens Correctional Center took proper steps to remedy unsafe conditions.
The Appellant responded by filing a Motion to Dismiss pursuant to West
Virginia Rule of Civil Procedure 12(b), arguing, in part, that the doctrine of qualified
immunity precluded the Appellee's negligence claim. (See footnote 3) The circuit court, after hearing, denied
the Appellant's motion, determining that the issue of qualified immunity was better left for
resolution on a motion for summary judgment. The Appellant filed this interlocutory appeal
pursuant to the Court's decision in Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d 660
(2009). (See footnote 4)
The Court, in upholding the applicability of qualified immunity, acknowledged that qualified immunity is a different kind of limited immunity to the State and its law enforcement officer for discretionary acts negligently committed within the scope of his employment. Id. at 277, 465 S.E.2d at 379. Thus,
the thrust of any attempt to establish liability against a public official is the violation of some duty attendant to the official's office and a resulting harm to the plaintiff. This analysis essentially adopts the common law tort concept that liability results from the violation of a duty owed which was a proximate cause of the plaintiff's injury. See, e.g., Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981); Atkinson v. Harman, 151 W.Va. 1025, 158 S.E.2d 169 (1967). The one difference in [qualified] immunity cases is that the official's act must be shown to have violated clearly established law of which a reasonable person would have known.
Id. at 277-78, 465 S.E.2d at 379-80 (quoting State v. Chase Sec., Inc., 188 W. Va. 356, 364,
424 S.E.2d 591, 599 (1992).
I n syllabus point six of Clark, this Court held:
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., (See footnote 6) 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.
195 W. Va. at 274, 465 S.E.2d at 376 (footnote added) (emphasis added). Similarly, in Robinson, the Court held in syllabus point three that
[g]overnment officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Syllabus, in part, Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465 (1987).
Robinson, 223 W. Va. at 829, 679 S.E.2d at 661, Syl. Pt. 3.
The Court also analyzed the doctrine of qualified immunity in State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992). In Chase, a third-party complaint filed against the Governor, the Treasurer, and the Auditor, who were members of the State Board of Investments, was dismissed based upon qualified immunity. Id. at 357, 424 S.E.3d at 592. The claim against the Board members was that their approval of an investment transaction made the Board members liable for a loss of approximately $7.1 million resulting from the transaction. Id. at 358, 424 S.E.2d at 593. On appeal, the Court upheld the dismissal of the third party complaint. Id. at 357, 424 S.E.2d at 592.
In reaching this decision, the Court followed the decision reached by the United States Supreme Court in Harlow v. Fitzgerald, 457 U. S. 800 (1982). In Harlow, the Supreme Court set forth the following qualified immunity test: 'Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' Chase Sec., 188 W. Va. at 362, 424 S.E.2d at 597 (quoting Harlow, 457 U. S. at 818). Thus, based upon the foregoing test in Harlow, the Court held in the only syllabus point:
A public executive official who is acting within the scope of his authority and is not covered by the provisions of W. Va. Code, 29-12A-1, et seq., is entitled to qualified immunity from personal liability for official acts if the involved conduct did not violate clearly established laws of which a reasonable official would have known. There is no immunity for an executive official whose acts are fraudulent, malicious, or otherwise oppressive
Chase Sec., 188 W. Va. at 356-57, 424 S.E.2d at 591-92, Syllabus, in part.
Likewise, the doctrine of qualified immunity is equally applicable to actions brought only against state agencies, such as the Appellant in the instant case. In Parkulo v. West Virginia Board of Probation and Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996), the plaintiff, who was abducted, raped and beaten by a parolee brought an action against the parole board and the Division of Corrections. Id. at 165, 483 S.E.2d at 511. The plaintiff alleged that the Board, in granting parole, and the Division of Corrections, in supervising the parolee while he was on parole, violated their respective statutory duties, acted outside the scope of their respective official responsibilities, and, through their respective employees, acted negligently, in bad faith, and in a wanton and reckless manner. Id.
The Court remanded the case for a determination of whether there was a waiver of the immunities in the relevant State insurance policy as that had not been addressed by the circuit court. Id. In reaching this decision, however, the Court held that
[u]nless the applicable insurance policy otherwise expressly provides, a State agency or instrumentality, as an entity, is immune under common-law principles from tort liability in W. Va. Code § 29-12-5 actions for acts or omissions in the exercise of a legislative or judicial function and for the exercise of an administrative function involving the determination of fundamental governmental policy.
199 W. Va. at 163-64, 483 S.E.2d at 509-10, Syl. Pt. 6. The Court explained in Parkulo, we
are addressing the immunity of the State and its instrumentalities in the context of the
exercise of judicial, legislative, and executive (or administrative) policy-making acts and
omissions. Id. at 176, 483 S.E.2d at 522; see J.H. v. W. Va. Div. of Rehab. Servs., 224 W.
Va. 147, 680 S.E.2d 392 (2009).
Based upon the foregoing, in analyzing whether qualified immunity bars the instant negligence Complaint, the first determination that must be made is whether the relevant insurance policy waives the defense of qualified immunity. Parkulo, 199 W. Va. at 163-64, 483 S.E.2d at 509-10, Syl. Pt. 6. In the instant case, the insurance policy at issue, a copy of which was attached to the Appellant's Motion to Dismiss, does not waive the Appellant's qualified immunity. Rather, the Certificate of Liability Insurance to the policy expressly provides that the additional insured [Division of Corrections] does not waive any statutory or common law immunities conferred upon it.
Thus, under the Parkulo analysis, because there is no waiver of the Appellant's qualified immunity defense in the relevant insurance policy, the Appellant is immune under common law tort principles for acts or omissions in the exercise of a legislative or judicial function and for the exercise of an administrative function involving the determination of fundamental governmental policy. Id. Consequently, the analysis turns on whether the Appellee's claims involve negligence for acts from the State agency's exercise of discretionary, administrative policy-making. See id. To that end, the Appellee alleged that the Appellant was charged with the non-delegable duty of providing a reasonably safe environment for prisoners. The Appellee further alleges that he slipped and fell on stagnate [sic] water that had collected near the shower facilities, and that he was left injured and unattended in stagnate [sic] water for several minutes. Based upon these factual allegations, the Appellee avers that the Appellant was negligent in failing to have the appropriate number of officers present at Stevens, in failing to ensure that Stevens took the adequate means to ensure the safety of the prisoners, and in failing to ensure that Stevens took proper steps to remedy unsafe conditions. The Appellee's allegations pertaining to having the appropriate number of officers present at the facility, as well as having the means to ensure the safety of the prisoners may have stemmed from administrative, policy-making acts. It is unclear, however, as to how the Appellee's averment that the Appellant failed to take steps to remedy unsafe conditions stems from any discretionary, administrative policy- making act or omission. Id. Once more facts are ascertained, it may be that the substance of this allegation may also have involved administrative, policy-making act(s).
Because it is not apparent from the Complaint or the record in this case as to whether all of the Appellee's allegations involve the exercise of an administrative function involving the determination of fundamental governmental policy, which is the guidepost set forth by the Court in Parkulo, the Court concludes that the circuit court did not err in allowing further factual development of the case before deciding the issue of whether qualified immunity precludes the Appellee's claims. 199 W. Va. at 163-64, 483 S.E.2d at 509-10, Syl. Pt. 6.