AN OVERVIEW OF LITIGATING CLAIMS AGAINST POLITICAL SUBDIVISIONS, GOVERNMENT

EMPLOYEES, THE STATE AND ITS AGENCIES

Charles R. Bailey, Esq.

Managing Partner, Bailey & Wyant, PLLC

T: 304.345.4222 | F: 304.343.3133

www.baileywyant.com

Prepared Specifically for AIG

1. Introduction/Background : A Tale of One City

2. Update on the law 3. Litigating Claims against Employees of the

State 4. Litigating Claims against the State and its

Agencies 5. Litigating Claims against Employees of

Political Subdivisions 6. Litigating Claims against Political

Subdivisions

A Tale of One City: ◦The Nelson case;

◦The Ratliff case; and

◦The Mazza case

Update on the Law

Woods v. Town of Danville, 712 F. Supp. 2d 502 (S.D.W. Va. 2010).

◦ A Town of Danville Police Officer mistakenly detained a cross country student who was jogging, handcuffing the student and causing personal injuries while responding to a call for assistance in a neighboring town of Madison. As a result the student sued the Police Officer and the Town of Danville.

◦ Against the Police Officer, the student alleged constitutional violations, specifically alleging unreasonable use of force in violation of his 4th and 14th Amendment rights, as well as state law claims of battery and tort of outrage. In response, the Police Officer moved for summary judgment arguing qualified immunity for the constitutional claims and statutory immunity for the state law claims.

◦ With respect to qualified immunity, the Court found that it is inapplicable if the Police Officer was

acting outside the scope of his authority. The Court found that West Virginia law, specifically West Virginia Code § 8-18-4, nor the Town of Danville Personnel Manual allowed for the Police Officer to leave the city limits of the Town of Danville. Because he was outside the scope of his authority when he arrested this individual in Madison, Police Officer was not entitled to qualified immunity protections.

◦ Specifically, the Court stated: “Government officials, such as police officers, should benefit from immunity where it is necessary to preserve their ability to serve the public good [but] where a police officer acts outside the scope of his authority, […] the rationale behind the qualified immunity defense falls away.” Citing Wyatt v. Cole, 504 U.S. 158, 167, 112 S.Ct. 1827, 118 L.E.2d 504 (1992).

◦ With respect to statutory immunity for the state law claims of the tort of outrage and battery, West

Virginia Code § 29-12A-5(b)(1)-(3) provides that immunity from suit for an employee of a political subdivision is lost if the employee acts manifestly outside the scope of his employment. Under the same reasoning to defeat qualified immunity, the Court found that Police Officer was manifestly outside the scope of his employment when he left the Town of Danville and entered into Madison. As a result, he was not entitled to statutory immunity for the state law claims.

Woods v. Town of Danville, 712 F. Supp. 2d 502 (S.D.W. Va. 2010), cntd.

◦ With respect to the claims against the Town of Danville, Plaintiff claimed, under 42 U.S.C. § 1983 that Plaintiff’s 4th Amendment Rights were violated as a result of Danville’s policy and custom of inadequate training and supervision of its officers. In addition, Plaintiff brought a State law negligent hiring, retention and supervision claim.

◦ Town of Danville sought summary judgment on the federal claim asserting that their actions were not cognizable under the 1983 municipal liability line of cases, i.e. the Town’s policies and customs were not the cause of the constitutional deprivation, while it sought summary judgment for the State law claims arguing statutory immunity under West Virginia Code § 29-12A-5.

◦ With respect to the federal claim, the Court was satisfied that the Town’s

policies and customs that allowed non-certified officers to carry a firearm and the failure to specifically train an officer on how to lawfully apprehend a suspect may be found by a jury to be deliberately indifferent on the part of the Town of Danville. As a result, the Court believed there was a dispute of fact with respect to whether the injury would have been avoided had the Police Officer been properly trained, which made it sufficient to allow the case to be presented to a jury.

Woods v. Town of Danville, 712 F. Supp. 2d 502 (S.D.W. Va. 2010), cntd.

◦ Finally, with respect to the state law claims asserted against the Town of

Danville, the Town of Danville argued that the claims of negligent hiring, supervision and retention were barred by the statutory immunity under West Virginia Code § 29-12A-5, specifically by asserted that statutory immunity is provided to the decision-making or the planning process in developing a governmental policy, including how that policy is to be performed related to the method in which it provides police protection.

◦ In response, the Court rejected this argument on grounds that the statute does not immunize the hiring, retention and supervision aspect, but only towards basic matters, such as the number of police cars to have in service and the type of equipment to use.

◦ Finally, the Court allowed the claims of negligent hiring, retention and supervision to go to a jury in order to determine whether the manner in which the Town did those things were reasonable.

City of St. Albans v. Botkins, 228 W.Va. 393, 719 S.E.2d 863 (2011).

◦ Citizen sued City of St. Albans and its police officers alleging civil rights violation

due to use of excessive force. Circumstances of case provided adequate grounds for reasonable officer to believe use of force justified.

◦ Court reversed Circuit Court’s Order denying Summary Judgment based upon qualified immunity and determined no dispute regarding any facts relevant to determining qualified immunity under the attendant circumstances of the case.

◦ Syllabus Pt 4: “Government 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. A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.” Citing Syllabus, Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465 (1987).

◦ The position of the Court concerning immunity in Bennett was adopted as the Court’s approach to “matters concerning immunity historically followed federal law, in large part, due to the need for a uniform standard when […] public officers are sued in state court for violations of federal civil rights pursuant to 42 U.S.C. § 1983.” Botkins at 398

City of St. Albans v. Botkins, 228 W.Va. 393, 719 S.E.2d 863 (2011).

◦ Syllabus Pt. 5: “The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to decide. 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.” Citing Syl. Pt. 1 of Hutchison v. City of Huntington, 198 W.Va. 500, 361 S.E.2d 465 (1987).

◦ Syllabus Pt. 6: “A public officer is entitled to qualified immunity from civil damages for performance of discretionary functions where (1) a trial court finds the alleged facts, taken in the light most favorable to the party asserting injury, do not demonstrate that the officer’s conduct violated a constitutional right; or (2) a trial court finds that the submissions of the parties could establish the officer’s conduct violated a constitutional right but further finds that it would be clear to any reasonable officers that such conduct was lawful in the situation confronted. Whenever the public officer’s conduct appears to be infringing on constitutional protections, the lower court must consider both whether the officer’s conduct violated a constitutional right as well as whether the officer’s conduct was unlawful.”

◦ Few cases where qualified immunity in an excessive force claim is used to

dismiss an excessive force claim outright as it is typically determined as a mixed question of fact and law concerning the totality of the circumstances.

Kanode v. Swope, et al., 2013 W.Va. LEXIS 437 (May 3, 2013)

◦ Petitioner alleged Mercer County Sherriff’s Dept, Sgt. Clemons, and Lt.

Gills illegally engaged in unlawful arrests, searches and seizures, used excessive force, and conspired against petitioner.

◦ Mercer County Sheriff Dept. immune under W.Va. §§ 29-12A-1 et seq. as “the town had no liability where it is alleged that its police chief committed conspiracy because conspiracy is an intentional act, not negligence.” citing Mallamo.

◦ “Claims of intentional and malicious acts are included in the general grant of immunity in W.Va. Code, 29-12A-4(b). Only claims of negligence specified in W.Va,. Code, 29-12A-4(c) can survive immunity from liability under the general grant of immunity in W.Va. Code, 29-12A-4(b)(1).” citing Zirkle

• Upheld Circuit Court’s finding petitioner didn’t “specifically allege violation of any generally accepted police procedure or constitutional or civil rights,” and noted the standard for determining qualified immunity regarding the Sgt. and Lt. was set forth in Syl. Pt. 6 of City of St. Albans v. Botkins, 228 W.Va. 393, 719 S.E.2d. 863 (2011).

Tenney v. Morgantown Utility Board, 2013 W.Va. LEXIS 515 (2013)

◦ Petitioner alleged negligence by political subdivision's employees in

maintaining catwalk after Petitioner applied for and received workers’ comp benefits under his employer’s policy after falling from a catwalk. MUB afforded immunity.

◦ W.Va. Code § 29-12A-5(a)(11) is unambiguous in application: “a political

subdivision is immune from liability if a loss or claim results from [a]ny claim covered by a workers’ compensation law or any employer’s liability law.”

◦ Upheld O’Dell v. Town of Gauley Bridge, establishing conditions to afford a political subdivision immunity under W.Va. Code §29-12A-5(a)(11) as follows: “(1) the plaintiff must have been injured by negligence of an employee of a political subdivision (2) the plaintiff must have received the injury in the course of and resulting from his or her employment (3) the plaintiff’s employer must have workers’ compensation coverage (4) the plaintiff must be eligible for such benefits.”

◦ Determined W.Va. Code § 29-12A-5(a)(11) applies to both employees of political subdivisions and non-employees alike and there is, “no distinction of a constitutional magnitude between the two classes of individuals.”

Thornburgh v. Town of Gauley Bridge, 2013 W.Va. LEXIS 558 (May 24, 2013)

◦ Respondent was protected by both statutory immunity and

qualified immunity after City Hall employee refused to accept $150 in change as payment for fine due to ordinance prohibiting payment in coins for an amount greater than $5.

◦ Petitioner argued the Circuit Court erred by finding respondent was entitled to immunity under W.Va. Code § 29-12A-5(a)(4).

◦ Despite Petitioner’s claim that the exception in W.Va. Code § 29-12A-18(e) applied because the suit concerned a violation of a U.S. Statute, U.S. Code § 5103, the Court determined that W.Va. Code § 29-12A-1 8(e) does not apply to qualified immunity.

◦ The Court further determined respondent had a reasonable

ordinance to prevent unduly burdening its employees with the task of counting coins.

Broschart v. WVDHHR, 2013 W.Va. LEXIS 548 (May 24, 2013) ◦ Petitioner terminated as DHHR child services worker after allowing

minor under her care to use her cell phone to contact an adult in another state and share photos and conversation of a sexual nature.

◦ Petitioner used the same set of facts to support her common law

constructive discharge claim, tort of outrage claim, and violations of employee handbook or manual claims as she used to support her whistleblower claim alleging she was terminated as punishment for previously reporting other employees that failed to follow internal procedures.

◦ Granted Motion to Dismiss based upon Petitioner’s claim being barred pursuant to W.Va. Code § 6C-1-4(a) which requires whistleblower actions to be brought within 180 days of the underlying claim.

◦ Plaintiff’s additional claims of the tort of outrage, constructive discharge, and violations of employee handbook were also dismissed as a matter of law in an Order of Dismissal entered on October 19, 2011 as they were based upon the same set of facts as her whistleblower claim

WVDHHR, et al. v. Payne, 746 S.E.2d 554 (2013)

◦ Remanded for entry of Order entering Summary Judgment to WVDHHR, a state

agency, and other state agencies. Respondent initially filed suit alleging negligence after child died from choking on food at behavioral health center.

◦ Syl. Pt. 4, “A Circuit Court’s Order denying summary judgment on qualified immunity grounds must […] identify those material facts which are disputed by competent evidence and must provide a description of the competing evidence or inferences there from giving rise to the dispute which preclude summary disposition.”

◦ Syl. Pt. 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 […] 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. 7: “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 […],” citing Syllabus, State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992), Syl. Pt. 3, in part, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995).

WVDHHR, et al. v. Payne, 746 S.E.2d 554 (2013) cntd.

◦ Syl. Pt. 8: clarified “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.”

◦ Qualified immunity principles are applicable to all levels of government officials, not just high level government officials, and are determined by the highly fact-specific nature of qualified immunity analysis. Fn. 17 at 562.

WVDHHR, et al. v. Payne, 746 S.E.2d 554 (2013) cntd.

◦ W.Va. caselaw dealing with qualified immunity as pertains to licensing activities involving a State agency, as opposed to a political subdivision, does not exist.

◦ As a result, the Court adopted W.V. Tort Claims and Insurance Reform Act W.Va. Code § 29-12A-1 et seq. W.Va. Code § 29-12A-5(a)(9), which expressly provides that political subdivisions are immune from liability for claims resulting from “licensing power or functions including, but not limited to, the issuance, denial, suspension, or revocation of or failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order or similar authority.” in its determination that this reasoning has equal application to qualified immunity for State licensing functions.

◦ In McCormick v. WalMart Stores (W.Va. 2004), the Court found, “the reason for establishing such immunity is readily understandable. In an era when much private conduct is subject to permitting or licensing by public bodies, absent some sort of ‘licensing’ immunity that applies under ordinary circumstances, such public bodies could be made codefendants in the majority of tort actions arising from the licensed or permitted private conduct.” McCormick v. WalMart Stores, 215 W.Va. 679, 684, 600 S.E.2d 576, 581 (2004).

WVDHHR, et al. v. Payne, 746 S.E.2d 554 (2013) cntd.

◦ The Court determined permitting this action to proceed against the DHHR on basis of discretionary licensing function would defeat the entire purpose of qualified immunity as articulated by United States Supreme Court in Westfall v. Erwin (1988), which stated: “The purpose of such official immunity is not to protect an erring official, but to insulate the decision making process from the harassment of prospective litigation. The provision of immunity rests on the view that the threat of liability will make […] officials unduly timid in carrying out their official duties.”

◦ Distinguished the difference between qualified immunity and public duty doctrine by stating, “qualified immunity is, quite simply, immunity from suit. The public duty doctrine is a defense to negligence-based liability, i.e. an absence of duty.”

Kanode v. Cpt. Mike Gills and Mercer County’s Sherriff’s Dept., 2013 LEXIS 1057 (2013)

◦ Petitioner alleged various claims under 42 U.S.C. 1983 against respondents Cpt. Gils and Sheriff Meadows claiming, amongst other things, discrimination, slander, harassment, and defamation of character

◦ Court determined all but one of Petitioner’s claims were barred by statute of limitations.

◦ Even if the statute of limitations had not barred Petitioner’s claims, “the claims against [respondents] would be barred by political subdivision immunity under W.Va. Code 29-12A-4 as well as the qualified immunity afforded to government officials.”

Bowden v. Monroe County Commission, 2013 W.Va. LEXIS 964 (2013)

◦ Suit against Monroe County Commission and Monroe County Dog Warden,

both in an official and individual capacity, alleging, amongst other things, negligence in performance of statutory duties after a neighbor’s pit bulls killed her husband.

◦ Syl. Pt. 4: W.Va. Code 29-12A-5(a)(5) provides political subdivision immunity

for “failure to provide, or the method of providing, police, law enforcement or fire protection,” and is coextensive with the common-law rule which “does not recognize a cause of action for breach of a general duty to provide, or the method of providing, such protection owed to the public as a whole. Lacking a clear-expression to the contrary, that statute incorporates the common-law duty rule and does not immunize a breach of a special duty to provide, or the method of providing, such a protection to a particular individual.”

◦ Determined Circuit Court erred in granting respondent’s Motion to Dismiss on basis of statutory immunities and erred in failing to grant petitioner’s motion to amend Complaint to establish a “special duty” between Petitioner and Respondents as, “the question of whether a special duty arises to protect an individual from a local governmental entity’s negligence in the performance of a nondiscretionary function […] is ordinarily a question of fact for the trier of facts.”

Redman v. South Branch Community and Technical College (2013 W.Va. LEXIS 966) (Sept. 27, 2013).

◦ Petitioner alleged Respondent SBCTC failed to supervise its students, resulting

in Petitioner being struck and injured by another student at SBCTC. Petitioner appealed the Circuit Order denying his motion for new trial following a defense verdict in the Petitioner’s underlying negligence suit.

◦ Negligent supervision cases primarily include students 14 years old and younger. The present case involved students around the age of 17 as SBCTC is a vocational school students voluntarily attend from their home high school to receive training as skilled workers and teachers set forth a higher expectation of maturity from the students, which the students acknowledged.

◦ Petitioner’s proposed jury instruction centered around the use of the phrase, “childish instincts” and the theory of parens patrae, recognized in W.Va. Code §18A-8-1(a) was inappropriate in the present case due to the fact the students involved were nearly 17 years old and Petitioner’s provocation of Redman was sexually vulgar and intended to incite Redman and was neither childish nor impulsive as suggested by use of the phrase “childish instincts” and the theory of parens patrae set forth by Petitioner in his proposed jury instructions

Redman v. South Branch Community and Technical College (2013 W.Va. LEXIS 966) (Sept. 27, 2013) cntd.

◦ The Court precluded evidence Redman broke a window at his home

high school earlier in the day before his interaction with a student at SBCTC as Respondent had no knowledge of the window breaking incident.

◦ It was determined Respondent’s jury instruction regarding “necessity of actual or constructive notice to the school of prior similar conduct is generally required because school personnel cannot reasonably be expected to be guarded against all sudden, spontaneous acts that take place among students […] and an injury caused by impulsive, unanticipated acts of a fellow student ordinarily will not give rise to a finding of negligence, absent proof of prior conduct that would have put [the school] on reasonable notice to protect against an injury causing act.”

Upchurch v. McDowell County 911 and Jane Doe Dispatcher, 2013 W.Va. LEXIS 1149 (2013).

◦ Decedent called McDowell County 911 to report a man was banging on his

front door threatening harm to him. Dispatcher said she would alert police. Police told the Dispatcher to call Decedent back to obtain more info about the incident and informed him a trooper was on the way. Decedent told Dispatcher he no longer needed a trooper to come because the man had left but said he feared the man would return. The Dispatcher warned Decedent not to shoot anyone and to call her back if the man returned.

◦ The Dispatcher called the Trooper and relayed the recent changes. Although there is dispute whether or not the Trooper called Decedent again to check on his safety, it is certain he did not travel to decedent’s home. The next morning, 911 received a call reporting Decedent had been killed.

◦ It was concluded that Ms. Upchurch failed to prove, “the existence of a special relationship between McDowell County 911,” and Decedent as would form the basis of a special duty of care to him. She only met the first prong of the special relationship test in that the 911 Dispatcher had contact with Decedent. After she informed Decedent the Officer was no longer coming, Decedent could not justifiably rely on 911 Dispatcher’s comment in the first conversation that assistance was coming and the 911 Dispatcher could not have known that her failure to take further action after the second call would result in Decedent’s subsequent death.

Upchurch v. McDowell County 911 and Jane Doe Dispatcher, 2013 W.Va. LEXIS 1149 (2013), cntd.

◦ Syl. Pt 2 states, “W.Va. Code §29-12A-5(a)(5) which provides, in relevant part, that a

political subdivision is immune from tort liability for the ‘failure to provide, or the method of providing, police, law enforcement, or fire protection,’ is coextensive with the common-law rule not recognizing a cause of action for the breach of a general duty to provide, or the method of providing, such protection owed to the public as a whole. Lacking a clear expression to the contrary, that statute incorporates the common-law special duty rule and does not immunize a breach of a special duty to provide, or the method of providing, such protection to a particular individual.” Citing Syl. Pt. 8 of Randall v. Fairmont City Police Department, 186 W.Va. 336, 412 S.E.2d 737 (1991)

◦ Syl. Pt. 3 affirmed, “if a special relationship exists between a local governmental entity and an individual which gives rise to a duty to such individual, and the duty is breached causing injuries, then a suit may be maintained against such entity.” Citing Syl. Pt. 3, Benson v. Kutsch, 181 W.Va. 1, 380 S.E.2d 36 (1989)..

◦ Syl. Pt. 4 cited Syl.Pt. 4 of Wolfe v. City of Wheeling by upholding, “to establish that a special relationship exists between a local governmental entity and an individual, which is the basis for a special duty of care owed to such individual, the following elements must be shown: (1) an assumption by the local governmental entity, through promise or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the local governmental entity’s agents that inaction could lead to harm; (3) some form of direct contact between the local governmental entity’s agents and the injured party; and (4) that the party’s justifiable reliance on the local governmental entity’s affirmative undertaking.”

Poe v. Town of Gilbert, West Virginia, 2012 U.S. Dist. LEXIS W.Va. LEXIS 125602 (S.D.W.Va. 2012)

◦ Plaintiff refused to sign citation on instruction of Reporting Officers after routine traffic stop and was pulled from his truck, threatened, and pushed against his car prior to being held in station for two hours in handcuffs.

◦ Woods v. Town of Danville established W.Va. State Law controls whether or not statutory immunity precludes claims of intentional and negligent infliction of emotional distress and outrageous conduct claims.

◦ Political subdivisions are not liable for “intentional malfeasance,” on the part of their employees pursuant to Mallamo v. Town of Rinesville.

Poe v. Town of Gilbert, West Virginia, 2012 U.S. Dist. LEXIS W.Va. LEXIS 125602 (S.D.W.Va. 2012), cntd.

◦ Pursuant to W.Va. Code § 29-12A-4(b)(1), “a political subdivision is not liable for damages in a civil action for injury, death, or loss to persons or property, caused by political subdivision or employees in connection with a governmental or proprietary function.

◦ W.Va. Code § 29-12A-4(c)(2) states subject to exceptions provided in §29-12A-5 and §29-12A6, political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees while acting within the scope of employment.”

◦ A political subdivision is immune from liability when the claim results from, “the failure to provide, or the method of providing police, law enforcement or fire protection.” W.Va. Code § 29-12A-5(a)(5).

Poe v. Town of Gilbert, West Virginia, 2012 U.S. Dist. LEXIS W.Va. LEXIS 125602 (S.D.W.Va. 2012), cntd.

◦ However, Defendant found not immune from liability as W.Va. Code § 29-12A-5(a)(5) “does not provide immunity to a political subdivision for negligent acts of the political subdivision’s employee performing acts in further of a method of providing police, law enforcement or fire protection,” citing Syl. Pt. 5 of Smith v. Burdette, 211 W.Va. 477, 566 S.E.2d 614 (2002).

◦ West Virginia’s municipal liability statute “does not contemplate immunity where a plaintiff sues based on negligent hiring and supervision of an employee.”

Cantley, et al. v. West Virginia Regional Jail and Correctional Facility Authority, et al., 2013 U.S. Dist. LEXIS 143653 (S.D. W.Va. 2013)

◦ Judge Chambers ruled that the West Virginia Regional Jail and Correctional Facility Authority (WVRJCFA) was entitled to Summary Judgment on the issue

of whether or not searching and delousing Pretrial Detainees, even if accused

of misdemeanors, was constitutional. By entering summary judgment in WCRJCFA’s favor, it was found that searching and delousing Pretrial Detainees

was constitutional. This was an important win for the WVRJCFA due to the fact if summary judgment had not been entered in their favor, WVRJCFA would

have faced substantial damages, attorney’s fees, and a large class action suit

had the Plaintiffs prevailed.

FEDERAL CONSTITUTIONAL CAUSE OF ACTION

42 U.S.C. § 1983 – “Civil Action for Deprivation of Rights”: ◦ This is not a substantive right! This merely provides a

vehicle for enforcement of substantive rights, such as violations of the U.S. Constitution.

◦ In addition, Federal Court is not the exclusive forum to litigate these claims. A plaintiff may bring a 42 U.S.C. § 1983 in State Court. When that happens, the State Court must apply federal law in order to define the elements of the claim. As for other immunities regarding the purely state law claims, the state court will be guided by West Virginia law and sometimes will look to Federal law if relevant.

When can you bring a claim? ◦ You may sue a State Employee under this provision

if:

◦ The State Employee is acting under the color of any state law; and

◦ The State employee causes or subjects you to a deprivation of a U.S. Constitutional right or a Federal statutory right

• What does it mean to be acting under the “color” of state law? – Exercising power possessed by virtue of a state law and

only made possible because the wrongdoer is clothed with the authority of state law

– May even have liability if the state actor abuses the position given to him by the state. Otherwise, all a defendant would have to say is that I acted outside my authority in violating the rights of a citizen and therefore there is no claim!

– A private citizen may also be deemed to a state actor. For example, a doctor who contracts with the State to provide health care to inmates. The doctor, when providing health care to the inmates, is acting under the color of the State law

• What does it mean to cause or subject you to a deprivation of a constitutional right? – There is no state of mind requirement, meaning that a

person does not have to act intentionally.

– There must be a causal connection between the actor’s actions and the harm that resulted. For example, if the Governor’s Chief of Staff unconstitutionally limits a citizens free speech rights, under the color of his authority and then that citizen is in a car wreck later causing a broken arm, the citizen cannot sue the Chief of Staff for damages for his broken arm. In other words, the Chief of Staff’s deprivation of constitutional rights did not cause the broken arm.

What remedies are available? ◦ Compensatory damages;

◦ Punitive damages, but only when the claim is against the defendant in an individual capacity:

There is a reckless or callous disregard for the plaintiff’s rights; or

An intentional violation of a constitutional right.

◦ Attorney’s fees (42 U.S.C. § 1988)

◦ Prospective Injunctive/Declaratory relief

OFFICIAL CAPACITY SUIT v. INDIVIDUAL CAPACITY SUIT

• Important to understand in what capacity the State employee is sued because if the State employee was sued in his or her “official capacity”, this is deemed the equivalent to suing the State itself. As will be discussed subsequently, a person may not make a claim for damages under 42 U.S.C. § 1983 against the State or its agencies.

• Therefore, claims under § 1983 against individuals in their official capacity are subject to a dismissal.

What immunities are available in Federal Court to State Employees defending a Federal

Constitutional Cause of action?

LITIGATING CLAIMS AGAINST STATE EMPLOYEES IN FEDERAL COURT

FEDERAL CONSTITUTIONAL CAUSE OF ACTION (cont.)

Absolute Immunity?

◦ Available to State legislators sued in their individual

capacities for damages and injunctive relief if the legislator is acting in the “sphere of legitimate legislative activity.”

• Qualified Immunity? – Protects officials performing discretionary functions unless their

conduct violates “clearly established constitutional rights of which a reasonable person would have known.”

– Designed to free the state employee from the “burdens” of litigation. Should be raised as soon as possible, including in a Motion to Dismiss.

– Qualified Immunity does not apply claims solely for injunctive or declaratory relief.

– Elements of Qualified Immunity: – Whether a constitutional right would have been violated under the facts

alleged; and – Whether the constitutional right violated was clearly established at the time

of the violation

– Qualified immunity is not available, generally, to private actors performing state functions, such as privately retained prison guards. Richardson v. McKnight, 521 U.S. 399 (1997).

11th Amendment Immunity? ◦ Not available to individuals sued in their individual

capacities.

◦ Official capacity suits, on the other hand, this immunity may be available, as official capacity suits against a state employee are the equivalent to suing the State itself. However, the claim may go forward if only injunctive or declaratory relief is sought.

State statutory immunities?

◦ West Virginia Code § 29-12A-1, et seq. does not

apply to state employees and is not applicable in Federal Court to Federal Constitutional claims

Is there a Federal Negligence claim against State Employees?

Federal Tort Claims Act: ◦ Not applicable to State employees.

◦ Therefore, federal negligence claims against state employees is a misnomer. There is no such thing. While a negligence claim may be brought in federal court under the Court’s supplemental jurisdiction, the Federal Court will look to West Virginia law, as those claims arise and are appropriate due to West Virginia law.

OTHER SPECIAL CONSIDERATIONS:

Higher pleading standard in Federal Court, in that there must be sufficient factual allegations to support the claim. Mere recital of “buzzword” phrases or terminology or just setting out the elements of the claim or cause of action are not sufficient to defeat a 12(b)(6) Motion.

This is applicable to all claims in Federal court, regardless of the cause of action asserted or the party defendant.

Again, a claim under 42 U.S.C. 1983 may be pursued in State court. A State court will generally be guided by federal law in defining what constitutes a constitutional deprivation.

STATE CONSTITUTIONAL RIGHTS:

The State of West Virginia has enacted a Constitution, which confers many substantive rights on the citizens of West Virginia.

Many of these rights mirror rights contained in the “Bill of Rights” that is a part of the United States Constitution.

• Can a citizen bring a private cause of action for monetary

damages claiming a violation of the West Virginia Constitution? – Generally, no. West Virginia does not have a similar vehicle for

enforcement of State constitutional rights like 42 U.S.C. § 1983. – However, there are two exceptions: – First, Article III, Section 7, which is similar to the rights contained

in the First Amendment of the U.S. Constitution, specifically creates a private cause of action for libel and defamation.

– Second, the W.Va. Supreme Court has recognized a private cause of action for “due process” violations. The Due Process clause of the W.Va. Constitution is found in Article III, Section 10. “Due process” violations is generally understood to be a denial of life, liberty or property without notice and an opportunity to be heard.

In sum, if a Complaint is filed against a State employee (or any State or political subdivision entity/employee) alleging violation of the W.Va. Constitution for actions other than a due process violation, then you should Move to Dismiss the Complaint.

• What if the Court denies the Motion to

Dismiss, what must a Plaintiff prove to establish a violation of the W.Va. Constitution? – The Court will be instructed by Federal law with

respect to the alleged constitutional violation. As a result, you must look at federal law defining the Constitutional rights and what is necessary to be proven to establish a cause of action. In essences, you are litigating a federal claim in the guise of a state law claim.

• What remedies are available?

– As there is no valid cause of action under the State constitution, a trial court will again look at federal law to determine what remedies are available. As a result, the likely remedies available will be:

• Compensatory damages;

• Punitive damages if (likely only if the claim is brought against the employee in his individual capacity – reasoning will be discussed below):

– There is a reckless or callous disregard for the plaintiff’s rights; or

– An intentional violation of a constitutional right.

• Prospective Injunctive/Declaratory relief

What about Attorney’s fees? ◦ Unlikely those will be awarded, as there is no

statutory provision in West Virginia that calls for an award of attorney’s fees for claims made pursuant to the W.Va. Constitution.

Official Capacity v. Individual Capacity

West Virginia has held that official capacity suits are the equivalent to suing the entity itself. Hansbarger v. Cook, 351 S.E.2d 65 (W.Va. 1986).

Therefore, if the State employee is sued in his or her official capacity, it will be treated as the equivalent to suing the State itself.

What immunities are available for causes of action for a violation of the State Constitution

against a State employee?

These immunities discussed will also be available for claims arising under 42 U.S.C. 1983 that are litigated in State Court.

Qualified Immunity? ◦ Yes. W.Va. has adopted the same qualified

immunity standard as the federal courts.

◦ In fact, W.Va. Courts are directed to look to federal

law in order to conform the qualified immunity principles to the principles developed in federal law.

• Constitutional Immunity?

– Not available to individuals sued in their individual

capacities.

– Official capacity suits, on the other hand, this immunity

may be available, as official capacity suits against a state employee are the equivalent to suing the State itself. There is an exception to this immunity, in that if a claim is limited to the proceeds of an insurance policy, then it may go forward. In addition, the claim may go forward if only injunctive or declaratory relief is sought.

State statutory immunities? ◦ West Virginia Code § 29-12A-1, et seq. does not

apply to State employees

May you sue a State Employee for negligence in State Court?

If you sue an individual in his or her official Capacity suit: ◦ May pursue a negligence claim, if the recovery is

limited to the proceeds of the insurance policy. Pittsburgh Elevator Co. v. West Virginia Bd. of Regents, 310 S.E.2d 675 (W.Va. 1983)

Individual capacity: ◦ No prohibition against a claim of negligence.

Therefore, standard common law negligence claim may be pursued.

What immunities are available to claims of negligence

against a State Employee?

• Qualified immunity: – Applies to claims of mere negligence against a State employee

who is acting within the scope of his or her employment, with respect to discretionary judgments, decisions and actions.

– In negligence claims, four part inquiry: – First, does the applicable insurance policy waive this defense? – Next, was the State employee acting within the scope of his or her

employment? And – Third, was the action with respect to a discretionary judgment,

decision or action? – Finally, did this discretionary act or judgment violate clearly

established law?

What is a discretionary judgment, decision or action? ◦ Generally defined as an act or omission in the exercise

of an administrative function involving the determination of fundamental governmental policy.

◦ The specific parameters are still being defined, as each qualified immunity inquiry involves a case-by-case analysis.

◦ Does not include ministerial acts, or acts that require no discretionary and are mandatory as a matter of state law or regulatory mandates An individual may be sued for negligently performing

ministerial acts

Public Duty Doctrine While not an immunity to suit, it is a powerful

defense in negligence cases against a government employee, the State and Political Subdivisions

Simply stated, the public duty doctrine holds that a government entity/employee is not liable for a failure to enforce regulatory or penal statutes. ◦ In order words, the basis of a negligence claim

cannot be based upon a breach owed to the public as a whole, such as enforcing criminal laws

Exception to Public Duty Doctrine

The public duty doctrine is not applicable if there is a special relationship.

A special relationship exists if: ◦ there is an assumption by the governmental entity, through

promises or actions, of an affirmative duty to act on behalf of the injured party’s behalf;

◦ knowledge on the part of an agent for a governmental entity that inaction could lead to harm;

◦ some form of direct contact between an agent of a governmental entity and the injured party; and

◦ the party’s justifiable reliance upon the undertaking of the governmental entity

The determination of whether a special relationship exists is generally a jury question.

OTHER CONSIDERATIONS:

In official capacity suits, the requirements of West Virginia Code § 55-17-1, et seq. must be met, such as pre-suit notice. These specific requirements will be discussed later.

In addition, in official capacity suits, there may not be an award of punitive damages. We are arguing that this immunity applies to state employees as well acting within the scope their duties. This same argument has been made that they enjoy the same constitutional immunity as does state.

Can you bring a § 1983 deprivation of a federal constitutional right action against the State

for money damages? ◦ No!

◦ The U.S. Supreme Court has determined that the State is not a “person” as defined under 42 U.S.C. § 1983.

◦ Therefore, you may not pursue a 1983 claim against a State or a State entity for monetary damages.

Can you bring a § 1983 claim deprivation of a constitutional right against a State entity for declaratory or injunctive relief solely?

◦ Yes! Also, should the plaintiff prevail, attorney’s

fees are available.

Remember, if a State employee is sued in his or her “official capacity”, this is deemed the equivalent to suing the State itself. Therefore, the analysis for official capacity suits is the same analysis used with respect to analyzing claims against the State.

What immunities are available in Federal Court to the State defending a Federal Constitutional Cause of action?

LITIGATING CLAIMS AGAINST THE STATE IN FEDERAL COURT

FEDERAL CONSTITUTIONAL CAUSE OF ACTION (cont.)

Qualified Immunity? ◦ Not applicable, as qualified immunity will only bar

claims for monetary relief, which a claim for monetary relief may not be maintained against a State agency.

◦ Qualified immunity does not apply to claims for injunctive or declaratory relief.

11th Amendment Immunity? ◦ Yes. This is applicable to bar claims for monetary

damage. ◦ NOTE: Be careful regarding 11th Amendment

immunity and removal to federal courts. Many district courts are deeming removal to federal court as waiver to 11th Amendment immunity protections!

◦ NOTE: In certain circumstances, 11th Amendment immunity has been waived by statute. For example, state immunity has been waived for claims brought pursuant to Title IX

◦ Does not apply if the claim is only for prospective injunctive or declaratory relief.

Remember, there is no “vehicle” to pursue a private cause of action for a violation of the W.Va. Constitution, barring the libel/defamation exception and the due process exception.

Can the State be held vicariously liable for either Federal or State constitutional

violations in a State Court action?

The W.Va. Supreme Court has rejected claims of vicarious liability in claims against the State for alleged constitutional violations of its employees. Robinson v. Pack, 679 S.E.2d 660 (W.Va. 2009)

What about an action for prospective declaratory or injunctive relief only? ◦ Yes. This claim may go forward, as West Virginia

Supreme Court has allowed claims to go forward for prospective declaratory or injunctive relief.

What remedies are available for a State constitutional violations?

◦ As there is no valid cause of action under the State constitution, a trial court will again look at federal law to determine what remedies are available. As a result, the likely remedies available will be:

Compensatory damages;

Injunctive/Declaratory relief

What about punitive damages? ◦ Not recoverable against the State. West Virginia

Code § 55-17-4.

What immunities are available to the State for claims in State Court alleging either a State or

Federal Constitutional violation?

Qualified Immunity? ◦ Yes! ◦ While generally the qualified immunity analysis is

coterminous with the public official whose acts give rise to the case, there are instances when the State will be entitled to qualified immunity, while the actor will not.

◦ The elements of qualified immunity for constitutional violations are: Whether a constitutional right would have been violated

under the facts alleged; and

Whether the constitutional right violated was clearly established at the time of the violation

Constitutional Immunity? ◦ Article III, Section 35 of the West Virginia

Constitution prohibits the State from being a party to a lawsuit.

◦ However, because the State has procured a policy of insurance, a private citizen may bring a cause of action to the proceeds up to the limit of the policy of insurance. As long as the plaintiff limits recovery to the limits of the policy of insurance.

◦ However, the constitutional immunity bar does not apply to prospective injunctive or declaratory relief is sought.

Can you sue the State for negligence in State Court?

Yes! If Qualified immunity does not apply

May pursue a negligence claim, if the recovery is limited to the proceeds of the insurance policy. Pittsburgh Elevator Co. v. West Virginia Bd. of Regents, 310 S.E.2d 675 (W.Va. 1983).

What about recovery under “respondeat superior” in negligence claims against the

State?

Generally yes, if qualified immunity does not apply.

However, there is a strong argument that if the act of the employee was an intentional criminal act, then the State Agency may not be liable for damages.

What immunities are available to claims of negligence against the State

• Qualified immunity is available • The negligence qualified immunity test for a

State entity is (same as the test for employees): ◦ First, does the applicable insurance policy waive this

defense? ◦ Next, is the entity subject to West Virginia Code § 29-

12A-1, et seq.? and ◦ Third, was the action with respect to a discretionary

judgment, decision or action? ◦ Did this discretionary judgment violate a clearly

established law?

OTHER CONSIDERATIONS:

Prior to filing suit against the State, you must give the State 30 day notice of the suit. Also, you must specifically notify the chief officer of the agency being sued, as well as the Attorney General. West Virginia Code § 55-17-3 ◦ Failure to comply with this notice requirement has been

deemed to be a jurisdiction defect, thereby precluding a court from proceeding in the matter.

State agencies have 60 days to file a responsive pleading. West Virginia Code § 55-17-4

Can you file a cause of action for a deprivation of a federal constitutional right against an

employee of a political subdivision?

Yes, under 42 U.S.C. 1983, just like you would a State employee.

What remedies are available? ◦ Compensatory damages;

◦ Punitive damages if (only in individual capacity claims):

There is a reckless or callous disregard for the plaintiff’s rights; or

An intentional violation of a constitutional right.

◦ Attorney’s fees (42 U.S.C. § 1988)

◦ Prospective Injunctive/Declaratory relief

Official Capacity v. Individual Capacity

• Important to understand in what capacity the employee is sued because if the employee was sued in his or her “official capacity”, this is deemed the equivalent to suing the political subdivision itself.

• However, this will not trigger a dismissal like a

State employee sued in his official capacity because political subdivisions are subject to suit under 1983, unlike the State. This will be discussed in length further.

What immunities are available in Federal Court to an Employee of a Political Subdivision

defending a Federal Constitutional Cause of action?

LITIGATING CLAIMS AGAINST AN EMPLOYEE OF A POLITICAL

SUBDIVISION IN FEDERAL COURT

Federal cause of action for deprivation of a constitutional right (cont.)

Qualified Immunity is available to political subdivision employees

11th Amendment immunity is not available, as a political subdivision (and its employees) is generally not considered a part of the State.

State statutory immunities, such as West Virginia Code § 29-12A-1, et seq. is not applicable in Federal Court for federal claims and causes of actions

Is there a Federal Negligence claim against Employees of Political Subdivisions?

No!

Not subject to the Federal Tort Claims Act

Remember, there is no “vehicle” to pursue a private cause of action for a violation of the W.Va. Constitution, barring the libel/defamation exception and the due process exception

• What remedies are available in State Court for

constitutional violations? ◦ Compensatory damages, but a limitation of

$500,000 in non-economic damages;

◦ Punitive damages, likely Yes, as West Virginia Code

§ 29-12A-7 is only applicable to the Political subdivision.

◦ Prospective Injunctive/Declaratory relief

What immunities are available to employees of a political subdivision sued in State court for

constitutional violations?

Qualified Immunity is available;

Constitutional immunity is not available;

State statutory immunity is available!

State statutory immunities: ◦ West Virginia Code § 29-12A-1, et seq. is

applicable to employees of political subdivisions and in fact limits the types of causes of action that may be pursued against the employee.

◦ The employee may only be liable (and subject to suit) in only one of three instances:

Acts were manifestly outside the scope of his or her job duties;

Acts were with a malicious purpose;

Some other Code provision expressly imposes liability.

Can you sue an employee of a political subdivision for negligence in State Court?

Yes, but only for conduct that falls within one of the three categories of conduct discussed on the previous slide

CAN YOU BRING A FEDERAL CONSTITUTIONAL CAUSE OF ACTION

Yes, but it is different than bringing a claim against an individual. ◦ You may sue a political subdivision under this

provision if: There was a constitutional deprivation;

The deprivation was a result of a official policy or custom

A political subdivision cannot be held liable for the conduct of its employees under a respondeat superior theory

• What is an official policy or custom and how is it created? • Generally defined as a deliberate choice to follow a

course of action by the top official in the subject matter • Does not have to be created through an official act or

formal policy making channel • A single decision by a “final policymaker” may be

sufficient to trigger liability, even if the decision was not intended to govern future situations

• Approval of a subordinate’s decision may also trigger liability, but only if the policymaker knew of the decision (and the improper motive for the decision) and then ratified it. Plus the policy must be proximately related to the harm inflicted.

What remedies are available? ◦ Compensatory damages;

◦ Punitive damages are not available against a political subdivision. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).

◦ Attorney’s fees (42 U.S.C. § 1988)

◦ Prospective Injunctive/Declaratory relief

What immunities are available in Federal Court to a political subdivision defending a Federal

Constitutional Cause of action?

• Qualified Immunity is available;

• 11th Amendment immunity is not available

• State Statutory immunity, such as West Virginia Code § 29-12A-1, et seq. is not available

Is there a Federal Negligence claim against a Political Subdivision?

No!

Not subject to the Federal Tort Claims Act

Remember, there is no “vehicle” to pursue a private cause of action for a violation of the W.Va. Constitution, barring the libel/defamation exception and the due process exception

What about vicarious liability for an employee’s State or Federal Constitution violation?

◦ Probably no liability under the Court’s holding in Robinson v. Pack, 679 S.E.2d 660 (W.Va. 2009).

◦ Additionally, West Virginia Code § 29-12A-1, et seq. specifically defines when a political subdivision may be liable for the actions of its employee and is generally found when the employee was negligent.

What remedies are available in State Court for

constitutional violations? ◦ Compensatory damages, but a limitation of

$500,000 in non-economic damages;

◦ Punitive damages – NO, under West Virginia Code §

29-12A-7.

◦ Prospective Injunctive/Declaratory relief

What immunities are available to employees of a political subdivision sued in State court for

constitutional violations?

Qualified immunity – Yes;

Constitutional immunity – No;

State statutory immunities? ◦ West Virginia Code § 29-12A-1, et seq. is applicable to

political subdivisions and in fact limits the types of causes of action that may be pursued against it

Can you sue a political subdivision for negligence in State Court?

Yes! West Virginia Code § 29-12A-1, et seq. limits

when a political subdivision may be subject to suit.

These instances are generally described as: ◦ Negligent operation of a motor vehicle; ◦ Negligent acts of an employee while acting within the

scope of his employment; ◦ Negligent acts of an employee while on grounds owned

by the entity; ◦ Negligent failure to maintain roads, sidewalks,

aqueducts

What immunities are available to a political subdivision for negligence suits?

Specifically immune from suit in 17 specific instances.

Examples include: ◦ Manner in which to provide police protection

◦ Operation of dumps or sanitary landfills

◦ Snow or ice conditions, unless affirmatively created by the entity;

◦ Any claim covered by any workers’ compensation or any employer’s liability law §

OTHER CONSIDERATIONS: In addition to the limitations for when a suit may be file

and for the 17 specific immunities, West Virginia Code § 29-12A-1, et seq. provides other considerations.

As previously discussed, non-economic damages are capped to $500,000 and punitive damages may not be awarded against a political subdivision.

In addition, the lawsuit must be filed in the county where the political subdivision is located or where the cause of action arose.

Finally, a political subdivision is entitled to an offset of medical expenses paid by a third-party. Foster v. City of Keyser, 501 S.E.2d 165 (W.Va. 1997)