THE WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY, Defendant Below, Petitioner v. THE ESTATE OF CODY LAWRENCE GROVE, Plaintiff Below, Respondent AND JOSHUA DAVID ZOMBRO, Defendant Below, Petitioner v. THE ESTATE OF CODY LAWRENCE GROVE, Plaintiff Below, Respondent
No. 18-1076 | No. 18-1083
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
November 20, 2020
Honorable Laura V. Faircloth, Judge
September 2020 Term; Civil Action No. 17-C-529; REVERSED AND REMANDED WITH INSTRUCTIONS; Submitted: September 16, 2020; Filed: November 20, 2020; released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
JUSTICE JENKINS delivered the Opinion of the Court.
Matthew R. Whitler
Anthony J. Delligatti
Pullin, Fowler, Flanagan, Brown & Poe, PLLC
Martinsburg, West Virginia
Attorneys for the West Virginia Regional Jail and Correctional Facility Authority
James W. Marshall, III
Bailey & Wyant, PLLC
Martinsburg, West Virginia
Michael W. Taylor
Bailey & Wyant, PLLC
Charleston, West Virginia
Attorneys for Joshua David Zombro
Paul G. Taylor
Martinsburg, West Virginia
Attorney for the Estate of Cody Lawrence Grove
- “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).
- “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).
- “‘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). - “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 [the] 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).
Jenkins, Justice:
Petitioners, the West Virginia Regional Jail and Correctional Facility Authority (“WVRJCA”) and Joshua David Zombro (“Mr. Zombro”) (collectively “Petitioners”), appeal the circuit court’s November 19, 2018 orders denying their respective motions to dismiss Respondent’s, the Estate of Cody Lawrence Grove (“the Estate”), amended complaint for failure to state a claim upon which relief can be granted. On appeal, Petitioners contend that the circuit court erred in failing to apply a heightened pleading standard for qualified immunity; failing to find both Petitioners are qualifiedly immune; failing to find the WVRJCA is a state agency; and failing to dismiss the claim against the WVRJCA for punitive damages. In contrast, the Estate asserts that the circuit court correctly applied a notice pleading standard; neither Petitioner is protected from suit by the qualified immunity doctrine under the facts of this case; and the issues of whether the WVRJCA is a state agency and subject to punitive damages are irrelevant and not properly before this Court.1
Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we find that the circuit court erred by incorrectly failing to apply the heightened pleading standard applicable to cases implicating qualified immunity; failing to appropriately consider whether qualified immunity applied to shieldPetitioners from suit; failing to determine whether the WVRJCA is a state agency; and failing to address punitive damages. Consequently, we reverse the November 19, 2018 orders of the circuit court and remand this case to the circuit court with instructions to consider the allegations of the amended complaint pursuant to the heightened pleading standard applicable to cases implicating qualified immunity; determine whether the claims against Petitioners are barred by the doctrine of qualified immunity; and ascertain whether punitive damages are applicable in this matter.
I.
FACTUAL AND PROCEDURAL HISTORY
This appeal arises from the suicide of Cody Lawrence Groves (“Mr. Groves”) on December 8, 2015, during his incarceration at the Eastern Regional Jail (“ERJ”), which is operated by the WVRJCA. On December 7, 2017, the Estate filed a complaint against the WVRJCA and Mr. Zombro, individually, and in his official capacity as a former correctional officer of the WVRJCA.2 The complaint alleges that, while he was incarcerated at the ERJ, Mr. Groves was on suicide watch, medical watch, or some other heightened watch and that the WVRJCA’s and/or Mr. Zombro’s failure to provide Mr. Groves with a reasonably safe confinement facility caused Mr. Groves’ death. Moreover, while the complaint is wholly devoid of the factual circumstances surroundingMr. Groves’ death, the Estate contended that there was “[a] failure
Subsequently, on January 15, 2018, Mr. Zombro moved to dismiss the Estate’s complaint for failure to state a claim upon which relief could be granted. In particular, Mr. Zombro argued that the complaint “contains no allegations of material facts regarding acts or omissions by [Mr.] Zombro to support a cause of action against him.” He further contended that the complaint was “riddled with conclusory allegations and legal conclusions without any factual support[.]” Additionally, Mr. Zombro asserted that he was entitled to complete dismissal of all claims based on qualified immunity.3 Following Mr. Zombro’s motion, the WVRJCA filed its own motion to dismiss the Estate’s complaint on January 25, 2018. The WVRJCA moved to dismiss on numerous grounds, including lack of subject matter jurisdiction, improper venue, and failure to state a claim upon which relief could be granted. Specifically, the WVRJCA asserted that the claims were barred bysovereign immunity, qualified immunity, lack of pre-suit notice, lack of standing to enjoin, and lack of sufficient facts to put it on notice of the claims asserted against it. In addition, the WVRJCA claimed that it was not subject to punitive damages and also argued for the dismissal of the Estate’s state constitutional law claims.
The Estate opposed the motions to dismiss and also moved for leave to amend its original complaint to add PrimeCare Medical of West Virginia, Inc., as another defendant. On April 12, 2018, the circuit court issued an order granting the WVRJCA’s motion to dismiss. The circuit court noted that its standards of review included the “heightened pleading standard,” because this was a matter involving qualified immunity issues and the general West Virginia Rule of Civil Procedure 12(b)(6) standard of review. While the circuit court acknowledged that the WVRJCA’s motion to dismiss raised numerous grounds, it further recognized that the issues of sovereign immunity, pre-suit notice to the State, and standing “are jurisdictional issues that must be decided prior to evaluating the sufficiency of the [c]omplaint.” The circuit court found that “[d]espite [the Estate’s] claim to the contrary, the [WVRJCA] is a state agency under the administration of the West Virginia Department of Military Affairs and Public Safety.
Following the circuit court’s April 25th order, the Estate filed an amended
Moreover, the Estate contended that the WVRJCA “otherwise negligently breached its duty to properly hire, train and supervise [Mr. Zombro;] negligently retained [Mr. Zombro] in its employ[;] and negligently failed to protect Plaintiff from a violation of his constitutional, statutory and common law rights and protections.” The Estate further alleged that Mr. Zombro “was to perform regular checks of Cody Grove’s welfare. Upon information and belief, [Mr. Zombro] missed at least one (1) of those safety checks allowing Cody Grove to hang and kill himself. This was a violation of law, regulation, Cody Grove’s legal rights and Defendants’ own policies and procedures.”
Subsequently, Mr. Zombro moved to dismiss the amended complaint for failure to state a claim upon which relief could be granted. In particular, Mr. Zombro argued that he was qualifiedly immune from suit; that the Estate asserted unrecognized causes of action; and, for those claims asserted against him in his official capacity, that the Estate failed to provide pre-suit notice. The Estate filed a response in opposition asserting that it had pleaded sufficient facts to place Mr. Zombro on notice of the claims, Mr. Zombro did not have immunity, the violations of various constitutional rights are actionable, and Mr. Zombro was not entitled to pre-suit notice.
The WVRJCA filed an answer to the Estate’s amended complaint and a cross-claim against PrimeCare, asserting that it would be entitled to contribution and/or indemnification from PrimeCare should a judgment be rendered in the Estate’s favor. Contemporaneously, the WVRJCA also filed a motion to dismiss the Estate’s amended complaint for failure to state a claim.6 In its motion to dismiss, the WVRJCA again made various arguments as to why the matter should be dismissed. The WVRJCA contended that the Estate lacked standing to enjoin it because the Estate’s purported injuries could not be redressed by an injunction; that it was qualifiedly immune from suit; that the Estate failed to sufficiently plead facts to put it on notice of the Estate’s claims in counts I, IV, and VII of the amended complaint; that it was not subject to punitive damages; and that a stand-alone cause of action for violation of the State constitution is not a recognized claim.7
The Estate filed a response in
At an August 27, 2018 hearing, without giving any significant opportunity to the parties to argue the substance of the motions to dismiss, the circuit court informed the parties that it intended to deny the motions to dismiss, stating that “I want to see what thedevelopment of the evidence is before I make [sic] grant any motion to dismiss.”8 In a September 11, 2018 order, the circuit court acknowledged receipt of proposed orders denying the WVRJCA’s and Mr. Zombro’s respective motions to dismiss prepared by the Estate. The circuit court stated that it would “review these orders and modify them as necessary.” Subsequently, the circuit court entered its separate orders denying the WVRJCA’s and Mr. Zombro’s motions to dismiss on November 19, 2018.9 In its order denying the WVRJCA’s motion to dismiss, the circuit court recognized that the motion to dismiss raised five grounds for dismissal, including that the WVRJCA is protected from
suit by qualified immunity and is not subject to punitive damages. In its order denying Mr. Zombro’s motion to dismiss, the circuit court recognized that the motion to dismiss raised three grounds for dismissal, including protection from suit by qualified immunity. Regarding the standard of review, the circuit court found in both orders that the Estate’s “burden . . . is a relatively light one.” (Citation omitted). Furthermore, the circuit court concluded in both orders that the Estate “has set forth a sufficient basis to deny [the WVRJCA’s and Zombro’s] Motion to Dismiss” and that the Estate “has set forth . . . sufficient facts to put Defendants on notice of the nature of Plaintiff’s claims. The Plaintiff has provided sufficient clarity so that the Defendants can understand the nature of Plaintiff’s factual claims and legal
II.
STANDARD OF REVIEW
The WVRJCA and Mr. Zombro ask this Court to review the circuit court’s denial of their respective motions to dismiss pursuant to
Having established that this appeal is properly before this Court, we turn to the appropriate standard of review. We previously have held that “[w]hen 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.” Syl. pt. 4, in part, Ewing v. Bd. of Educ. of Cty. of Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998). Furthermore, “[f]or purposes of the motion to dismiss, the complaint is construed in the light most favorable to plaintiff [ ], and its allegations are to be taken as true.” Marple, 236 W. Va. at 660, 783 S.E.2d at 81 (quotations and citation omitted). “[D]ismissal for failure to state a claim is only proper where it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations in the complaint.” Id. (citation omitted). However, a plaintiff’s complaint must, “at a minimum[,] . . . set forth sufficient information to outline the elements of his [or her] claim,” and, “in civil actions where immunities are implicated, the trial court must insist on heightened pleading by the plaintiff.” Id. (quotations and citations omitted). With these standards in mind, we now turn to the parties’ respective arguments.
III.
DISCUSSION
The WVRJCA raises four assignments of error in this appeal. First, the WVRJCA asserts that the circuit court erred by applying a notice pleading standard rather than a heightened pleading standard to a motion to dismiss based on qualified immunity. Second, the WVRJCA contends that the circuit court erred by failing to find the WVRJCA is qualifiedly immune. Third, the WVRJCA argues that the circuit court erred to the extent that it found the WVRJCA is not a state agency. Fourth, the WVRJCA asserts that the circuit court erred by not dismissing the claim against it for punitive damages.
Similarly, Mr. Zombro asserts two assignments of error on appeal. First, Mr. Zombro argues that the circuit court erred by failing to use the framework for analysis required by this Court in Marple, 236 W. Va. 654, 783 S.E.2d 75, when qualified immunity is raised. Second, Mr. Zombro contends that the circuit court erred by denying his motion to dismiss because he is entitled to qualified immunity from the claims raised in the Estate’s First Amended Complaint due to the Estate failing to establish that he engaged in any act or omission related to the suicide of the Estate’s decedent that established the violation of a clearly established right. However, because we resolve this matter by finding that the circuit court failed to apply the proper pleading standard and conduct any analysis as to Petitioners’ claims of qualified immunity, we need not reach the remaining assignments of error asserted by Petitioners.
A. Heightened Pleading Standard
Both the WVRJCA and Mr. Zombro argue that the circuit court incorrectly applied a notice pleading standard rather than
We believe that in civil actions where immunities are implicated, the trial court must insist on heightened pleading by the plaintiff. See Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc) (a
§ 1983 action); see generally Parkulo v. West Virginia Board of Probation and Parole, [199 W. Va. 161, 483 S.E.2d 507] [(1996)]. To be sure, we recognize the label “heightened pleading” for special pleading purposes for constitutional or statutory torts involving improper motive has always been a misnomer. A plaintiff is not required to anticipate the defense of immunity in his complaint, Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923-24, 64 L. Ed. 2d 572 (1980), and, under the West Virginia Rules of Civil Procedure, the plaintiff is required to file a reply to a defendant’s answer only if the circuit court exercises its authority under Rule 7(a) to order one. We believe, in cases of qualified or statutory immunity, court ordered replies and motions for a more definite statement under Rule 12(e) can speed the judicial process. Therefore, the trial court should first demand that a plaintiff file “a short and plain statement of his complaint, a [statement] that rests on more than conclusion[s] alone.” Schultea v. Wood, 47 F.3d [1427,] [] 1433 [5th Cir. 1995]. Next, the court may, on its own discretion, insist that the plaintiff file a reply tailored to an answer pleading the defense of statutory or qualified immunity. The court’s discretion not to order such a reply ought to be narrow; where the defendant demonstrates that greater detail might assist an early resolution of the dispute, the order to reply should be made. Of course, if the individual circumstances of the case indicate that the plaintiff has pleaded his or her best case, there is no need to order more detailed pleadings. If the information contained in the pleadings is sufficient to justify the case proceeding further, the early motion to dismiss should be denied.
Hutchison v. City of Huntington, 198 W. Va. 139, 149-50, 479 S.E.2d 649, 659-60 (1996) (emphasis added). Accord Portee v. City of Mount Hope, No. 17-0546, 2018 WL 3203157, at *2 (W. Va. June 29, 2018) (memorandum decision) (“‘[I]n civil actions where immunities are implicated, the trial court must insist on heightened pleading by the plaintiff.’ Hutchison, 198 W. Va. at 149, 479 S.E.2d at 659.’”); W. Va. Dep’t of Educ. v. McGraw, 239 W. Va. 192, 196 n.5, 800 S.E.2d 230, 234 n.5 (2017) (“In Hutchison v. City of Huntington, 198 W. Va. 139, 149-50, 479 S.E.2d 649, 659-60 (1996), we stated that when a defendant’s answer pleads the defense of governmental immunity, the circuit court should order the plaintiff to file a reply tailored to the defendant’s immunity defense. . . . Ms. McGraw’s original complaint provided scant detail of the basis of her constitutional tort claim against the DOE, and consequently, she filed two amended complaints in the course of the proceedings before the circuit court. Had the circuit court required Ms. McGraw to file a reply to the DOE’s motion to dismiss pleading qualified immunity, it might have assisted an early resolution to this dispute.”); W. Va. Bd. of Educ. v. Croaff, No. 16-0532, 2017 WL 2172009, at *3 (W. Va. May 17, 2017) (memorandum decision) (“‘In civil actions where immunities are implicated, the trial court must insist on heightened pleading by the plaintiff.’ Hutchison, 198 W. Va. at 149, 479 S.E.2d at 659.”); W. Va. Bd. of Educ. v. Marple, 236 W. Va. 654, 60, 783 S.E.2d 75, 81 (2015) (“Furthermore, ‘in civil actions where immunities are implicated, the trial court must insist on heightened pleading by the plaintiff.’ Hutchison, 198 W. Va. at 149, 479 S.E.2d at 659.”); Marcus v. Holley, 217 W. Va. 508, 517, 618 S.E.2d 517, 526 (2005) (“In Hutchison v. City of Huntington,198 W. Va. 139, 479 S.E.2d 649 (1996), this Court emphasized the enhanced burden upon a plaintiff in certain types of cases, explaining that ‘in civil actions where immunities are implicated, the trial court must insist on heightened pleading by the plaintiff.’ 198 W. Va. at 149, 479 S.E.2d at 659.”). Accordingly, it is well-established that matters involving qualified immunity, such as the case presently before us, require a type of “heightened pleading” standard.
has set forth in its First Amended Complaint sufficient facts to put [the WVRJCA and Mr. Zombro] on notice of the nature of [the Estate’s] claims. The [Estate] has provided sufficient clarity so that the WVRJCA and Mr. Zombro can understand the nature of [the Estate’s] factual claims and legal theories of the action.
(Emphasis added). From this language, it is clear that the circuit court applied the notice pleading standard applicable to civil actions, generally, and not the heightened pleading standard required in cases involving qualified immunity. Accordingly, we find that the
circuit court erred by failing to apply the heightened pleading standard in this particular matter and reverse its ruling in this regard.
B. Failure to Conduct Qualified Immunity Analysis
Petitioners also claim that the circuit court failed to conduct a proper qualified immunity analysis. As this Court explained in Hutchison, “[t]he very heart of the [qualified] immunity defense is that it spares the defendant from having to go forward with an inquiry into the merits of the case.” Id. at 148, 479 S.E.2d at 658. We also have recognized that
a ruling on qualified immunity should be made early in the proceedings so that the expense of trial is avoided where the defense is dispositive. First and foremost, qualified immunity is an entitlement not to stand trial, not merely a defense from liability. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985) (“The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.”).
Maston v. Wagner, 236 W. Va. 488, 498, 781 S.E.2d 936, 946 (2015). Therefore, because we consistently have acknowledged that qualified immunity is not just a defense, but rather “an entitlement not to stand trial,” id., rulings on qualified immunity claims should be made as early in the proceedings as possible. The uniqueness of qualified immunity and its provision of total immunity from suit rather than just a defense is an important reason for the aforementioned heightened pleading. See Xiao v. Rodriguez, No. A18-0646, 2019 WL 1983488, at *8 (Minn. Ct. App. May 6, 2019), review denied (Aug. 6, 2019), cert. denied sub nom. Jun Xiao v. Regents of the Univ. of Minn., __ U.S. __, 140 S. Ct. 851, 205L. Ed. 2d 464 (2020), reh’g denied, __ U.S. __, 140 S. Ct. 1553, 206 L. Ed. 2d 387 (2020) (“The ‘allegations in a complaint may provide the basis for denying an immunity defense.’ Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 318 (Minn. App. 1997) (emphasis in original), aff’d in part, 582 N.W.2d 216 (Minn. 1998). Cases implicating immunity, however, are subject to a somewhat heightened pleading standard. See Elwood v. Rice Cty., 423 N.W.2d 671, 676 (Minn. 1988). That is, plaintiffs ‘should supply in their complaints or other supporting materials greater factual specificity and particularity than is usually required.’ Id. (quotation omitted). And, immunity should be determined ‘at the earliest possible stage to shield officers from disruptive effects of broad-ranging discovery and effects of litigation.’ Id. at 675.”). Accordingly, Mr. Zombro argues that “[t]he purpose of requiring ‘heightened pleading’ by a plaintiff permits a framework by which a circuit court may engage in an analysis to determine whether a plaintiff has a sufficient claim to overcome the qualified immunity.” We agree.
The issue of qualified immunity has come before this Court on countless occasions.
This Court has established numerous steps that must be examined in order to find whether qualified immunity protections apply in a particular case. For example, we have held that,
“[i]n 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).
Syl. pt. 7, A.B., 234 W. Va. 492, 766 S.E.2d 751. We further have held that,
[t]o 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 [the] absence of such a showing, both the State and its officials or employees charged with such acts or omissions are immune from liability.
Syl. pt. 11, A.B., 234 W. Va. 492, 766 S.E.2d 751. As such, whenever a defendant raises the issue of qualified immunity in a motion to dismiss, the circuit court must look to our qualified immunity body of law and follow the steps this Court expressly has outlined to make the determination of whether qualified immunity applies under the specific circumstances of that particular case. Specifically, these steps include whether: (1) a state agency or employee is involved; (2) there is an insurance contract waiving the defense of qualified immunity; (3) the West Virginia Governmental Tort Claims and Insurance Reform Act,
In the matter now before us, as stated above, both the WVRJCA and Mr. Zombro filed motions to dismiss asserting that each is protected from suit by the doctrine of qualified immunity. Accordingly, the circuit court was required to engage in an examination of the amended complaint, using the requisite heightened pleading standard, to determine whether the Estate sufficiently alleged the WVRJCA and/or Mr. Zombro had committed discretionary governmental acts or omissions in violation of clearly established statutory or constitutional rights or laws of which a reasonable person would have known or whether they had engaged in conduct that was otherwise fraudulent, malicious, or oppressive. However, as evidenced by its final orders, the circuit court failed to undertake such an analysis.
Instead, as discussed above, the circuit court simply found the Estate “has set forth in its First Amended Complaint sufficient facts to put [the WVRJCA and Mr. Zombro] on notice of the nature of [the Estate’s] claims.” The orders are devoid of any factual findings other than (1) that Mr. Groves’ suicide occurred on December 8, 2015, while in the custody of the WVRJCA and under the direct supervision of Mr. Zombro
fraudulent, malicious, or oppressive.15 Therefore, in addition to its previously recognized error in failing to apply the correct heightened pleading standard in this matter where the doctrine of qualified immunity has been implicated, the circuit court further erred by failing to conduct any semblance of an analysis regarding qualified immunity.16 As such, this failure, also, is grounds for reversal of the circuit court’s orders and requires proceedings on remand to thoroughly consider Petitioners’ claims of qualified immunity.17
IV.
CONCLUSION
For the reasons set forth above, the November 19, 2018 orders of the Circuit Court of Berkeley County are reversed, and this case is remanded with instructions to appropriately consider the heightened pleading standard applicable to cases implicating qualified immunity, whether punitive damages are applicable in this matter, and appropriate consideration of whether the case is barred by the doctrine of qualified immunity.
Notes
[i]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Mr. Delligatti [Counsel for the WVRJCA]: I don’t think you addressed all of the – I think that addressed the issue of qualified immunity whether the claim was stated but there are also issues about whether a state agency could be subject to punitive damages, et cetra, I mean are you saying that –
The Court: It’s to all aspects.