                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS

Edward Hodgson and                                                                FILED
Mary Ann Hodgson,
Plaintiffs Below, Petitioners                                                  April 21, 2017
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 16-0495 (Randolph County 10-C-156)                                       OF WEST VIRGINIA



West Virginia Division of Corrections, a

State Agency, John/Mary Doe, and XYZ,

unknown Employees and Agent(s) of the Defendant,

Defendants Below, Respondents


                                MEMORANDUM DECISION
       Petitioners Edward Hodgson and Mary Ann Hodgson (collectively, “petitioner”),1 pro se,
appeal the order of the Circuit Court of Randolph County, entered on April 22, 2016, refusing to
reconsider its November 15, 2012, ruling from the bench that denied petitioner’s motion to alter or
amend an order entered on June 5, 2012. In the June 5, 2012, order, the circuit court awarded
summary judgment to Respondents West Virginia Division of Corrections, John/Mary Doe, and
XYZ, unknown Employees and Agent(s) of the Defendant (collectively, “respondents” or
“DOC”), on petitioner’s claim that the DOC was deliberately indifferent to his serious medical
need. The DOC, by counsel Billie Jo Streyle, filed a summary response, and petitioner filed a
reply.

        The 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.

        Following his conviction for being a felon in possession of a firearm, petitioner served a
term of incarceration in the DOC’s custody from January of 2008 to June of 2010 when he was
released on parole. From August 1, 2008, to August 19, 2008, the DOC housed petitioner at
Huttonsville Correctional Center (“Huttonsville”) in Randolph County, West Virginia. Following
petitioner’s transfer to Mount Olive Correctional Complex (“Mount Olive”) on August 19, 2008,


       1
           Petitioner Mary Ann Hodgson alleges only a derivative claim for loss of consortium.


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he was placed in that facility’s infirmary for injuries he incurred at Huttonsville.2 In August of
2010, petitioner filed an action in the Circuit Court of Randolph County alleging that (1) DOC
employees intentionally injured petitioner during his incarceration at Huttonsville; or, in the
alternative, (2) DOC employees were deliberately indifferent to petitioner’s harming himself while
at Huttonsville. Petitioner sought a minimum of $1,000,000 in damages.

        Following briefing and oral argument, the circuit court awarded summary judgment to the
DOC on April 9, 2012, on petitioner’s claims that DOC employees intentionally injured him. After
another round of briefing and argument, the circuit court awarded summary judgment to the DOC
on June 5, 2012, on petitioner’s claim under Title 42, section 1983 of the United States Code that
DOC employees were deliberately indifferent to his harming himself while at Huttonsville. In its
June 5, 2012, order, the circuit court found that the DOC was not a proper defendant because a
state agency was not a “person” for purposes of actions filed pursuant to section 1983. With regard
to the individual respondents, the circuit court that, as DOC employees, they both possessed
qualified immunity from petitioner’s action and, as a matter of law, were not deliberately
indifferent to his serious medical need during his incarceration at Huttonsville.

        Following his retention of new counsel, petitioner filed a motion to alter or amend the
circuit court’s June 5, 2012, order on June 19, 2012. In his motion, petitioner conceded that the
DOC was not a proper defendant in a section 1983 action, but contended that his claim that the
individual respondents were deliberately indifferent to his serious medical need should be decided
by a jury. Petitioner acknowledged that he failed to identify any of the individual respondents.
However, petitioner stated that, if his motion to alter or amend was granted, he would seek leave to
amend his complaint to identify those DOC employees who were deliberately indifferent to his
harming himself. To his motion, petitioner attached several witness statements taken during the
DOC’s internal investigation into the cause of his injuries while at Huttonsville.

        The circuit court held a hearing on petitioner’s motion to alter or amend the circuit court’s
June 5, 2012, order on November 15, 2012. The circuit court found that the motion was filed
pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure on the ground that petitioner
failed to file the motion within ten days of the entry of its June 5, 2012, order as required by Rule
59(e). Petitioner’s attorney objected that the motion was timely filed under Rule 59(e), but
conceded that the motion’s purpose was to give the circuit court an opportunity to “change your
mind.” The circuit court denied petitioner’s motion to alter or amend its June 5, 2012, order
awarding respondents summary judgment on his claim that DOC employees were deliberately
indifferent to his serious medical need. Although the circuit court instructed the DOC’s attorney to
prepare an order, no order was entered memorializing the court’s November 15, 2012, ruling from
the bench.

      According to petitioner, he subsequently called the Circuit Clerk of Randolph County on
March 1, 2016, and inquired as to when such an order would be entered by the circuit court.
       2
         According to the shift commander who supervised petitioner’s arrival at Mount Olive,
petitioner “looked like he’d been beat up or in a car wreck, one of the two.”

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Shortly thereafter, on March 18, 2016, petitioner filed a motion for relief from judgment pursuant
to Rule 60(b) reiterating the same arguments formerly raised in his June 19, 2012, motion to alter
or amend the circuit court’s June 5, 2012, order. By an order entered on April 22, 2016, the circuit
court denied petitioner’s March 18, 2016, motion on the ground that it would not reconsider its
previous decision a second time.

        Petitioner subsequently filed a notice of intent to appeal on May 20, 2016, and there is no
dispute that petitioner perfected his appeal with regard to the circuit court’s April 22, 2016, order
denying his March 18, 2016, motion for relief from judgment on August 23, 2016. However,
petitioner contends that he may also appeal the denial of his June 19, 2012, motion to alter or
amend the judgment and (with it) the circuit court’s June 5, 2012, award of summary judgment to
the DOC on his section 1983 claim that DOC employees who were deliberately indifferent to his
harming himself. The DOC counters that petitioner may appeal only the circuit court’s April 22,
2016, order. We agree with petitioner.

        We find that petitioner may appeal the denial of his June 19, 2012, motion to alter or amend
the judgment and (with it) the circuit court’s June 5, 2012, order based on the following two-step
analysis. First, we find that petitioner’s attorney at the November 15, 2012, hearing was correct
that the June 19, 2012, motion was filed within the ten-day time frame specified in Rule 59(e)
given that Rule 6(a) provides that “[w]hen the period of time prescribed or allowed is fewer than
11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded” from the
computation of time. In syllabus point 7 of James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d
16 (1995), we held that the timely filing of a Rule 59(e) motion suspends the finality of the order
being challenged so that the four-month appeal time under Rule 5(f) of the West Virginia Rules of
Appellate Procedure and West Virginia Code § 58-5-4 does not begin to run until “the date of entry
of the order disposing of the motion.”

        The second step of the analysis consists of determining the date of the entry of the order
denying petitioner’s June 19, 2012, motion to alter or amend the judgment. “The time for filing an
appeal commences to run and is to be computed from the entry of any of the following orders: . . .
granting or denying a motion under Rule 59[(e)] to alter or amend the judgment[.]” Rule 72,
W.V.R.C.P.; see also Syl. Pt. 2, Sothen v. Continental Assurance Co., 147 W.Va. 458, 128 S.E.2d
458 (1962) (same). In this case, no order memorializing the circuit court’s November 15, 2012,
ruling from the bench was entered. Therefore, we agree with petitioner that the circuit court’s April
22, 2016, order denying his March 18, 2016, motion for relief from judgment also effectively
denied his June 19, 2012, motion. Given that an order denying petitioner’s Rule 59(e) motion was
not entered until April 22, 2016, the appeal time with regard to the circuit court’s denial of that
motion as well as the circuit court’s June 5, 2012, award of summary judgment did not begin to run
until the entry of the April 22, 2016, order.

        Given that the June 5, 2012, order awarding summary judgment to the DOC is under
appeal, we utilize a de novo standard of review. Syl. Pt. 1, Wickland v. Am. Travellers Life In. Co.,
204 W.Va. 430, 513 S.E.2d 657 (1998) (holding that standard of review applicable to an appeal
from motion to alter or amend judgment “is the same standard that would apply to the underlying
judgment upon which the motion is based and from which the appeal to this Court is filed”). “A
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circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192
W.Va. 189, 451 S.E.2d 755 (1994). Rule 56(c) of the West Virginia Rules of Civil Procedure
provides that summary judgment shall be granted provided that “there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” With regard to
the DOC itself, we find that the circuit court properly granted summary judgment as a matter of
law because the DOC, “as an agency of the state[,] is not a ‘person’ under [section] 1983.” Pruitt v.
West Virginia Dept. of Public Safety, 222 W.Va. 290, 296, 664 S.E.2d 175, 181 (2008).

        With regard to the individual DOC employee respondents, we find that they have
discretion in the manner they care for an inmate’s physical and mental health. See United States v.
DeCologero, 821 F.2d 39, 42 (1st Cir. 1987) (stating that, “though it is plain that an inmate
deserves adequate medical care, he cannot insist that his institutional host provide him with the
most sophisticated care that money can buy.”) (emphasis in original). However, a constitutional
minimum exists in that deliberate indifference to an inmate’s serious medical need “constitutes
unnecessary and wanton infliction of pain which is proscribed by the prohibition on cruel and
unusual punishment in the Federal and State Constitutions.” Syl. Pt. 4, Nobles v. Duncil, 202
W.Va. 523, 505 S.E.2d 442 (1998). The standard an inmate must meet to demonstrate deliberate
indifference by DOC employees is exacting: “To establish that a health care provider’s actions
constitute deliberate indifference to a prison inmate’s serious medical need, the treatment, or lack
thereof, must be so grossly incompetent, inadequate, or excessive as to shock the conscience or be
intolerable to fundamental fairness.” Id. at 526, 505 S.E.2d at 445, syl. pt. 5. The circuit court
found both that the individual respondents were not deliberately indifferent to petitioner’s serious
medical need and that they had qualified immunity from petitioner’s action. Given the existence of
a constitutional minimum, we choose to decide this case on the basis of qualified immunity.

        In syllabus point 11 of West Virginia Regional Jail and Correctional Facility Authority v.
A.B., 234 W.Va. 492, 766 S.E.2d 751 (2014), we set forth the standard for determining whether a
state employee is entitled to qualified immunity from suit as follows:

               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.

Given that qualified immunity affords immunity from having to undergo a trial rather than just a
defense to liability, a claim of immunity, “where ripe for disposition, should be summarily decided
before trial.” Hutchison v. City of Huntington, 198 W.Va. 139, 147, 479 S.E.2d 649, 657 (1996)
(footnote omitted).

       Petitioner concedes that, during his delusional episodes at Huttonsville, he was “kept
segregated [from other inmates],” monitored “via [video] surveillance,” and checked on “in person
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every fifteen minutes.” We note that the DOC objects to petitioner’s reliance on certain documents
produced during its internal investigation in this appeal. However, we find that the witness
statements taken during that internal investigation generally substantiate petitioner’s concession
that DOC employees took steps to keep him from harming himself during his delusional episodes.3
Petitioner is merely upset that those steps proved inadequate to stop him from injuring himself to
the extent that he was placed in the infirmary upon his transfer to Mount Olive. However, in light
of petitioner’s concession having evidentiary support in the record,4 we find that a reasonable
DOC employee at Huttonsville would not have known that his or her conduct was “so grossly
incompetent, inadequate, or excessive as to shock the conscience or be intolerable to fundamental
fairness,” which is the standard petitioner would have to meet to prove a constitutional violation.
See Syl. Pts. 4 & 5, Nobles, 202 W.Va. at 525-26, 505 S.E.2d at 444-45.5 Therefore, we conclude
that the circuit court did not err in awarding summary judgment to the individual respondents on
the ground that they had qualified immunity from petitioner’s action.6

        For the foregoing reasons, we affirm the circuit court’s June 5, 2012 order awarding
summary judgment to respondent as well as the circuit court’s April 22, 2016, order denying
petitioner’s Rule 59(e) motion to alter or amend the judgment and his Rule 60(b) motion for relief
from judgment.

                                                                                          Affirmed.

       3
         The record reflects the treatment plan was to expedite petitioner’s transfer to Mount Olive
because it was felt that Mount Olive was better equipped to treat mental health issues. The witness
statements attached to petitioner’s June 19, 2012, motion to alter or amend the judgment reflect
that there was also a belief that petitioner was either “faking it” or being “manipulative.”
       4
         We find that the witness statements are not among the documents to which the DOC
objects because the DOC included the witness statements in its supplemental appendix.
       5
         Petitioner alleges that the effects of his injuries have proven to be permanent because he
suffered a traumatic brain injury during his incarceration at Huttonsville. However, we find that
the record contradicts that allegation. The nurse who assessed petitioner once he arrived at the
Mount Olive infirmary told the investigator that petitioner presented with scratches, bruises, and
black eyes that “didn’t require” medical intervention. The nurse further stated that, during his stay
at the infirmary, petitioner’s mental condition improved.
       6
         Petitioner’s remaining argument is that the judge who awarded summary judgment in the
June 5, 2012, order was later suspended from office due to misconduct. However, we note that the
misconduct for which the judge was suspended had nothing to do with this case. Petitioner alleges
that the judge also engaged in misconduct in this case by soliciting votes for her reelection during
a court proceeding. The DOC counters that petitioner fails to support this claim with appropriate
citations to the record. We agree with the DOC and decline to address this argument pursuant to
Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, which provides that we “may
disregard errors that are not adequately supported by specific references to the record on appeal.”

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ISSUED: April 21, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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