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West Virginia Division of Natural Resources v. Dawson

Supreme Court of West Virginia

June 3, 2019

WEST VIRGINIA DIVISION OF NATURAL RESOURCES, JERRY JENKINS, BRADFORD DEBORD, AND STEPHEN ANTOLINI, Defendants Below, Petitioners
v.
STEVEN DAWSON AND ANGELA DAWSON, Plaintiffs Below, Respondents

          Submitted: March 13, 2019

          Appeal from the Circuit Court of Hampshire County The Honorable C. Carter Williams, Judge Civil Action No. 15-C-80

          Keith C. Gamble Nathan A. Carroll Pullin, Fowler, Flanagan, Brown & Poe, PLLC Attorneys for the Petitioners

          Jerry D. Moore Jared T. Moore The Moore Law Firm, PLLC Attorneys for the Respondents

          JENKINS, JUSTICE delivered the Opinion of the Court.

          OPINION

          JENKINS, JUSTICE.

         SYLLABUS BY THE COURT

         1. "'A circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the "collateral order" doctrine.' Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828');">223 W.Va. 828, 679 S.E.2d 660 (2009)." Syllabus point 1, City of Saint Albans v. Botkins, 228 W.Va. 393, 719 S.E.2d 863 (2011).

         2. "'This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.' Syllabus Point 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002)." Syllabus point 2, West Virginia State Police v. Hughes, 238 W.Va. 406, 796 S.E.2d 193 (2017).

         3. "The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute 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." Syllabus point 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996).

         4. "'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');">234 W.Va. 492, 766 S.E.2d 751 (2014).

         5. "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 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');">234 W.Va. 492, 766 S.E.2d 751 (2014).

         6. "If the plaintiff identifies a clearly established right or law which has been violated by the acts or omissions of the State, its agencies, officials, or employees, or can otherwise identify fraudulent, malicious, or oppressive acts committed by such official or employee, the court must determine whether such acts or omissions were within the scope of the public official or employee's duties, authority, and/or employment. To the extent that such official or employee is determined to have been acting outside of the scope of his duties, authority, and/or employment, the State and/or its agencies are immune from vicarious liability, but the public employee or official is not entitled to immunity in accordance with State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992) and its progeny. If the public official or employee was acting within the scope of his duties, authority, and/or employment, the State and/or its agencies may be held liable for such acts or omissions under the doctrine of respondeat superior along with the public official or employee." Syllabus point 12, West Virginia Regional Jail & Correctional Facility Authority v. A.B., 234 W.Va. 492');">234 W.Va. 492, 766 S.E.2d 751 (2014).

         7. "A government employer implicates its employee's liberty interest in his/her good name when the following elements are alleged: (1) a stigmatizing statement; (2) which was false; (3) was published, or made accessible to the public; (4) in connection with a serious adverse employment action. When these elements are met, the employee must be afforded procedural safeguards under Article III, Section 10 of the West Virginia Constitution." Syllabus point 6, West Virginia Department of Education v. McGraw, 239 W.Va. 192, 800 S.E.2d 230 (2017).

         The Petitioners, the West Virginia Division of Natural Resources ("the DNR"); and Jerry Jenkins ("Col. Jenkins"), [1] Bradford DeBord ("Maj. DeBord"), [2] and Stephen Antolini ("Sgt. Antolini")[3] (collectively "the DNR employees"), appeal a December 8, 2017 order of the Circuit Court of Hampshire County that denied their motion for summary judgment on the ground of qualified immunity. In the underlying civil action filed by Respondent, Steven Dawson ("Mr. Dawson")[4], Mr. Dawson alleged that his former employer, the DNR, and its employees, Col. Jenkins, Maj. DeBord, and Sgt. Antolini, "committed alleged acts of defamation, false light, infringement of a liberty interest without due process, and reckless infliction of emotional distress, along with claims of loss of consortium and punitive damages." On the DNR's and the DNR employees' motion for summary judgment asserting qualified immunity, the circuit court found that there is a genuine issue of material fact as to whether Mr. Dawson's liberty interest was implicated, and, if so, whether he was afforded due process; whether the DNR and the DNR employees were in violation of Mr. Dawson's clearly established rights of which a reasonable person would have known; whether the DNR and the DNR employees acted maliciously in their investigation of Mr. Dawson; and whether the actions of the DNR employees were within the scope of their employment.

         On appeal, the DNR and the DNR employees raise the following issues: (1) the circuit court erred by failing to find qualified immunity because (a) there is no evidence of a violation of any clearly established statutory or constitutional right or law of which a reasonable person would have known, and (b) there is no evidence of conduct on behalf of the DNR and the DNR employees that could be characterized as fraudulent, malicious, or oppressive; (2) no genuine issues of material fact existed, and no reasonable juror could find the DNR employees acted outside their official capacity as DNR officers; and (3) the circuit court improperly found that the DNR and the DNR employees' motion for summary judgment, filed after the close of discovery, was inconsistent with the provisions of Maston v. Wagner, 236 W.Va. 488, 781 S.E.2d 936 (2015), which encourages a ruling on qualified immunity early in the proceedings.

         Having considered the briefs submitted on appeal, the appendix record, the parties' oral arguments, and the applicable legal authority, we find no error in the circuit court's decision that there are genuine issues of material fact as to whether the DNR and the DNR employees' acts or omissions were fraudulent, malicious, or oppressive and whether the individual DNR employees acted outside of their scope of employment. We further find no error in the circuit court's findings regarding the timing of the motion for summary judgment. Therefore, we affirm as to those three issues. However, we find that the Dawsons cannot demonstrate a violation of a clearly established statutory or constitutional right or law of which a reasonable person would have known. Accordingly, we reverse the circuit court's decision as to that issue and direct the circuit court to enter summary judgment in favor of the DNR and the DNR employees as to that issue only and remand for further proceedings consistent with this opinion.

         I.

         FACTUAL AND PROCEDURAL HISTORY

         In summer 2014, the DNR was investigating the offenses of illegal bear hunting and prohibited driving of motor vehicles within the Nathanial Mountain Wildlife Management Area ("WMA") in Hampshire County, West Virginia. Mr. Dawson was employed by the DNR as a natural resources police officer. Although Mr. Dawson was assigned to Hardy County, West Virginia, he assisted the Hampshire County investigation at the request of DNR Officer Terry Srout ("Officer Srout"). On September 7, 2014, Officer Srout and Mr. Dawson placed two game-trail cameras in the WMA.[5] The cameras were set along trails where they believed there was illegal driving activity. Officer Srout and Mr. Dawson retrieved the cameras on September 21, 2014. One camera, a Moultrie-brand camera (the "Moultrie Camera"), contained eleven photos that showed two vehicles:

(1) a gray/silver Dodge truck, that the investigating officers determined belonged to Ralph Buckley, and (2) a white Sport Utility Vehicle. Upon inspection of the second camera, a Bushnell-brand camera (the "Bushnell Camera"), it was discovered that the memory card was missing. However, upon further inspection, Officer Srout discovered that the Bushnell Camera did contain twelve photos that were saved to the internal drive. The photos were timestamped, but the dates and times did not correspond with the time the Bushnell Camera had been deployed by Officer Srout and Mr. Dawson. According to the circuit court, "[t]hese photos reveal a person very close to the lens of the camera, with the individual's clothing visible. It also appears that a hand is covering or shielding the camera lens."

         Mr. Dawson contends that he and other investigating officers believed that the driver of the Dodge truck was Ralph Buckley and he stole the memory card from the Bushnell Camera. They obtained a search warrant based upon that belief from the Hampshire County Magistrate Court.[6] Mr. Dawson had been the one to complete the search warrant affidavit. Once Mr. Dawson obtained the search warrant, he and the other investigating officers attempted to execute it at the Buckley residence; however, Ralph Buckley was not home. Mr. Dawson then called Jeremy Buckley, Ralph Buckley's son, and informed him that he had a search warrant for Ralph Buckley's property. Ralph Buckley returned home and spoke to Mr. Dawson. At some point, Mr. Dawson had an opportunity to observe the bed of Ralph Buckley's truck and discovered that the striations of the truck bed were dissimilar to those captured by the Bushnell Camera. Because of this observation, Mr. Dawson chose not to execute the search warrant and, instead, wrote Ralph Buckley a ticket for driving in the WMA and conspiracy to drive within the WMA based on the photographs retrieved from the Moultrie Camera. Mr. Dawson did not issue a citation to Jeremy Buckley out of concern that it might affect his job as a federal correctional officer.

         On or about December 28, 2014, Ralph Buckley and his son, Jeremy Buckley, filed a Professional Standards Unit ("PSU") complaint against Mr. Dawson, Officer Srout, and another officer involved in the acquisition of the search warrant. The PSU complaint alleged that the officers failed to obey the laws governing DNR officers and that Mr. Dawson used false information to obtain the search warrant. Sgt. Antolini, a PSU investigator, was officially assigned to the investigation on January 8, 2015, by Maj. DeBord.

         The DNR and the DNR employees contend that Sgt. Antolini conducted a thorough investigation from January 8, 2015 to February 7, 2015, including interviewing Mr. Dawson twice; presenting Mr. Dawson with a copy of the PSU complaint; interviewing the other officers named in the complaint, the complainants, and other witnesses; and visiting the location where the cameras were installed. Sgt. Antolini concluded that there was no evidence to support Mr. Dawson's search warrant affidavit. Col. Jenkins then asked Sgt. Antolini to conduct a supplemental investigation, and Sgt. Antolini interviewed Mr. Dawson a third time. During that interview, evidence was again shown to Mr. Dawson, questions were asked by Sgt. Antolini, and Mr. Dawson agreed to undergo a polygraph examination. Sgt. James A. Hunt ("Sgt. Hunt") of the Charleston Police Department was engaged to conduct the polygraph examination of Mr. Dawson. The purpose of the exam was to ascertain if Mr. Dawson intended to be deceptive when he applied for the subject search warrant.

         Sgt. Antolini's supplemental report indicated that "Sgt. Hunt advised that a polygraph examination to determine whether Officer Dawson had lied would not be advisable due to the fact that an investigation had already been completed and sustained the information on the search warrant as false." The supplemental report also stated that Sgt. Hunt had "further explained that a polygraph examination regarding Officer Dawson's intent at the time the search warrant was filed could be conducted even though that type of test was not routinely done."[7] Sgt. Antoloni informed Sgt. Hunt that he would like to move forward with the polygraph examination. Sgt. Hunt performed the polygraph "[d]ue to requests from both the accused, and a party of interest[.]" Sgt. Hunt concluded that Mr. Dawson's responses regarding his intent yielded "consistent and significant responses indicative of deceptive responses." Mr. Dawson resigned his employment immediately following the administration of the polygraph test.

         After completing the supplemental investigation, the DNR and the DNR employees concluded that Mr. Dawson knowingly provided false or misleading information in an affidavit for a search warrant. On April 20, 2015, Maj. DeBord wrote to Jeremy Buckley concerning the results of the complaint and informed him that the complaint was sustained and that appropriate action had been taken. According to the Dawsons, once Jeremy Buckley received the letter, news of Mr. Dawson's falsification of evidence in a search warrant affidavit spread quickly throughout the law enforcement community and community at large.

         On May 18, 2015, Mr. Dawson filed a grievance with the West Virginia Public Employee's Grievance Board pursuant to West Virginia Code § 6C-2-1 (LexisNexis 2015). Mr. Dawson sought exoneration of the charge that he had falsified a search warrant affidavit and removal of the finding from his personnel file. Specifically, Mr. Dawson argued that he was constructively discharged and sought a rescission of his resignation. The grievance was denied at Level One, and a Level Two mediation session was unsuccessful. Mr. Dawson appealed to Level Three, and a hearing was held on September 29, 2016. The final decision of the Grievance Board Administrative Law Judge was issued on December 14, 2016. The Grievance Board determined that numerous provisions of General Order No. 5[8] had been violated; directed Mr. Dawson to be reinstated to his previous position with back pay and interest, seniority, and benefits;[9] and ordered the DNR to expunge all negative, unprofessional, or detrimental information contained in Mr. Dawson's personnel file arising from the PSU complaint. No appeal of this decision was ever taken by the DNR.[10]

         During the course of the grievance proceedings, on August 5, 2015, the Dawsons filed their initial complaint against the DNR and the DNR employees[11] alleging defamation, false light, infringement of liberty interest without due process, reckless infliction of emotional distress, and loss of consortium, and seeking both compensatory and punitive damages. On June 2, 2016, the circuit court entered an order staying the circuit court action to allow the resolution of the grievance proceedings. Following the decision of the Grievance Board, the Dawsons moved to amend their complaint to add an additional count of misrepresentation against Sgt. Antolini, and the circuit court granted the motion to amend. Thereafter, the DNR and the DNR employees filed a motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted.[12] The circuit court granted, in part, the motion to dismiss the amended complaint by dismissing the Dawsons' claim for punitive damages against the DNR and the DNR employees, but denied the motion to dismiss as to all other claims.

         Once discovery was closed, the DNR and the DNR employees filed a motion for summary judgment on the basis of, among others, qualified immunity; and, after a hearing on September 7, 2017, the circuit court asked the parties to submit supplemental briefing on the issue of qualified immunity. On December 8, 2017, the circuit court denied the motion for summary judgment. The circuit court observed that, despite the DNR and the DNR employees' assertion that Sgt. Antolini conducted a proper and thorough investigation, the DNR chose not to appeal the Grievance Board decision, which found that the investigation violated numerous provisions of General Order No. 5. The circuit court also noted that the Grievance Board decision found that Sgt. Antolini mischaracterized the validity of the polygraph examination. Additionally, the circuit court found that a clear reading of Sgt. Antolini's report suggests that the DNR determined that Mr. Dawson committed the crime of false swearing, although the DNR never pursued any criminal charges against Mr. Dawson for the alleged offense.

         The circuit court took notice of the findings of the Grievance Board decision, where the Board found that "[t]here can be little question under the circumstances of this case that [Mr. Dawson's] resignation was involuntary" and ruled that "[a] finding that a law enforcement officer made false statements in an affidavit is a potential career ending event. But for the failure of the [DNR] to reach the correct decision in the internal investigation, [Mr. Dawson] would not have tendered his resignation."

         The circuit court further found that Mr. Dawson was entitled to due process under General Order No. 5; the DNR and the DNR employees violated numerous provisions of that order; and there was a genuine issue of material fact regarding the exact number of violations of General Order No. 5. Heavily relying upon the Grievance Board decision, the circuit court found the following potential violations of General Order No. 5: (1) the DNR does not have a standard of proof to utilize to determine if a complaint should be sustained; (2) the investigator failed to notify Mr. Dawson regarding the nature of the complaint; (3) Sgt. Antolini failed to collect critical evidence, including the Bushnell Camera; (4) Maj. DeBord did not make a recommendation concerning the investigation; (5) interviews of potential witnesses were not recorded as required; and (6) an invalid polygraph examination was administered, in spite of the fact that the test could not be used for legal purposes. The circuit court also found that Col. Jenkins sustained the complaint on the invalid polygraph, as Col. Jenkins admitted that he believed Mr. Dawson before the polygraph was administered. As a result of these findings, the circuit court concluded that there are genuine issues of material fact as to whether Mr. Dawson was afforded due process and as to whether the DNR and the DNR employees' acts or omissions were in violation of Mr. Dawson's clearly established constitutional rights, of which a reasonable person would have known.

         The circuit court also found that, due to the number of potential violations of General Order No. 5 and Mr. Dawson's testimony that the environment at the DNR was hostile to him as a former law enforcement officer with the West Virginia State Police, there was a genuine issue of material fact regarding whether the DNR and the DNR employees' actions were malicious or oppressive. The circuit court further found that there is a genuine issue of material fact as to whether the DNR employees were acting within the scope of their employment because of the potential numerous violations of General Order No. 5. Ultimately, the circuit court concluded that "the record in this matter is laden with genuine issues and questions of material fact underlying the immunity determination" and denied the DNR and the DNR employees' motion for summary judgment. The DNR and the DNR employees now appeal the decision of the circuit court arguing that they are entitled to qualified immunity from the Dawsons' claims.

         II.

         STANDARD OF REVIEW

         Ordinarily, an order denying a motion for summary judgment is interlocutory and not appealable; however, this Court has explicitly recognized "'[a] circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the "collateral order" doctrine.' Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009)." Syl. pt. 1, City of Saint Albans v. Botkins, 228 W.Va. 393, 719 S.E.2d 863 (2011). Furthermore, "'[t]his Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.' Syllabus Point 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002)." Syl. pt. 2, W. Virginia State Police v. Hughes, 238 W.Va. 406, 796 S.E.2d 193 (2017). This review, however, is guided by the following principle regarding qualified immunity:

[t]he ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute 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.

Syl. pt. 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996). "In this connection, it is the jury, not the judge, who must decide the disputed 'foundational' or 'historical' facts that underlie the immunity determination, but it is solely the prerogative of the court to make the ultimate legal conclusion." Id. at 149, 479 S.E.2d at 659. "Accordingly, a circuit court may not summarily dispose of a claim on grounds of qualified or statutory immunity where there is a genuine issue of material fact underlying the immunity determination." Maston v. Wagner, 236 W.Va. 488, 498, 781 S.E.2d 936, 946 (2015). Additionally, we "must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion." Painter v. Peavy, 192 W.Va. 189, 192, 451 S.E.2d 755, 758 (1994) (citations omitted). Furthermore, when considering evidence at the summary judgment stage, courts must apply the following guidelines:

The circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Consequently, we must draw any permissible inference from the underlying facts in the most favorable light to the party opposing the motion. In assessing the factual record, we must grant the nonmoving party the benefit of inferences, as credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Summary judgment should be denied even where there is no dispute as to the evidentiary facts in the case but only as to the conclusions to be drawn therefrom. Similarly, when a party can show that demeanor evidence legally could affect the result, summary judgment should be denied.

Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 336 (1995) (citations and quotations omitted). With these standards in mind, we proceed to the parties' arguments.

         III.

         DISCUSSION

         While the DNR and the DNR employees raise four assignments of error, all involve the basic legal structure of qualified immunity. Accordingly, we will begin by reviewing this Court's ...


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