John E. Staubs, Plaintiff Below, Petitioner
Dennis Dingus, Warden, McDowell County Correctional Center, West Virginia Division of Corrections, an agency of the State of West Virginia, and John Doe, unknown person or persons, Defendants Below, Respondents
John E. Staubs, by counsel Sherman L. Lambert Sr., appeals
the Circuit Court of Kanawha County's March 15, 2016,
order granting respondents' motions to dismiss.
Respondents Dennis Dingus, Warden, McDowell County
Correctional Center and the West Virginia Division of
Corrections ("DOC"), by counsel Charles R. Bailey
and Andrew R. Herrick, filed a response. On appeal,
petitioner argues that the circuit court erred in granting
respondents' motions to dismiss because he alleged
sufficient facts upon which he could obtain relief.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
November 29, 2013, the McDowell County Correctional Center
experienced a blockage in its sanitary main. According to
petitioner, who was incarcerated at the facility at that
time, a DOC employee ordered him to fix the problem.
Respondents assert that this task was part of
petitioner's duties as a maintenance worker. During the
maintenance process, petitioner alleged that a drain plug
ruptured and sewage sprayed his face and body. According to
his complaint, petitioner ingested sewage and some got in his
eyes because he was not wearing any protective clothing at
the time. Petitioner further alleged that respondents did not
provide him with sanitary safeguards after the incident.
Thereafter, petitioner contracted a skin infection and rash,
according to his complaint.
November of 2015, petitioner filed a complaint in the circuit
court arising from this incident. Petitioner's complaint
alleged violations of the Eight and Fourteenth Amendments to
the United States Constitutions pursuant to 42 U.S.C. §
1983 and otherwise. The complaint contained the following
counts: (1) cruel and unusual punishment; (2) tort of
outrage; (3) invasion of privacy; (4) negligent supervision,
training, and retention; and (5) reprehensible conduct, among
other claims. Thereafter, respondents filed motions to
dismiss petitioner's complaint based upon qualified
immunity. In March of 2016, the circuit court granted
respondents' motions to dismiss. It is from the order
granting the motions that petitioner appeals.
previously held that "'[a]ppellate review of a
circuit court's order granting a motion to dismiss a
complaint is de novo.' Syllabus Point 2,
State ex rel. McGraw v. Scott Runyan Pontiac-Buick,
Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995)." Syl.
Pt. 2, Hill v. Stowers, 224 W.Va. 51, 680 S.E.2d 66
(2009). Additionally, we have held as follows:
"The trial court, in appraising the sufficiency of a
complaint on a Rule 12(b)(6) motion, should not dismiss the
complaint unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief." Syl. Pt. 3, Chapman v. Kane
Transfer Co., 160 W.Va. 530, 236 S.E.2d 207 (1977).
Syl. Pt. 2, Roth v. DeFeliceCare, Inc., 226 W.Va.
214, 700 S.E.2d 183 (2010). Upon our review, the Court finds
no error in the circuit court's order granting
respondents' motions to dismiss.
appeal, petitioner argues that the circuit court erred in
dismissing his complaint because he alleged sufficient facts
to state a claim upon which he could obtain relief.
Specifically, petitioner argues that he alleged that
respondents violated the Eighth and Fourteen Amendments to
the United States Constitution and such allegation is
sufficient to survive a motion to dismiss. We do not agree.
As the circuit court specifically found, petitioner's
claims essentially alleged negligence by respondents in
allowing him to be exposed to sewage. Accordingly, the
circuit court was correct in finding that petitioner's
claims were barred by respondents' qualified immunity.
Court has previously 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. 1, Hess v. W.Va. Div. of Corrections, 227
W.Va. 15, 705 S.E.2d 125 (2010). Here, all of
petitioner's claims stemmed from his allegation that
respondents negligently allowed him to be exposed to sewage
during the course of his duties as a maintenance worker in a
DOC facility. So, while it is true that petitioner alleged
that respondents violated the Eighth and Fourteenth
Amendments, the fact that he alleged negligence as the sole
basis for his claims precluded recovery on any of the counts
from the complaint. Moreover, petitioner baldly alleged
violations of these amendments but failed to allege any facts
that would support such violations. Simply put, identifying
constitutional amendments is not sufficient to state a claim
upon which relief may be granted. For these reasons, we find
no error in the circuit court granting respondents'
motions to dismiss.
petitioner argues that the circuit court should have allowed
him to amend his complaint so that it could set forth
sufficient facts upon which he could obtain relief. We do not
agree. Rule 15(a) of the West Virginia Rules of Civil
Procedure states that, after a responsive pleading is served,
"a party may amend the party's pleading only by
leave of court or by written consent of the adverse party;
and leave shall be freely given when justice so
requires." Further, we have held that
"[a] trial court is vested with a sound discretion in
granting or refusing leave to amend pleadings in civil
actions. Leave to amend should be freely given when justice
so requires, but the action of a trial court in refusing to
grant leave to amend a pleading will not be regarded as
reversible error in the absence of a showing of an abuse of
the trial court's discretion in ruling upon a motion for
leave to amend." ...