IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                    January 2019 Term
                     _______________                         FILED
                                                         March 15, 2019
                 Nos. 17-0907 and 18-0291                    released at 3:00 p.m.
                                                         EDYTHE NASH GAISER, CLERK
                                                         SUPREME COURT OF APPEALS
                     _______________                          OF WEST VIRGINIA




                 JEREMIAH GOODWIN,
                 Plaintiff Below, Petitioner
                             v.
             CITY OF SHEPHERDSTOWN /
      SHEPHERDSTOWN POLICE DEPARTMENT,
             and SHEPHERD UNIVERSITY,
              Defendants Below, Respondents
                     _______________
     Appeal from the Circuit Court of Jefferson County
          The Hon. Christopher C. Wilkes, Judge
             Civil Action No. CC-19-2017-C-92
                     _______________
                       AFFIRMED
                     _______________


               Submitted: January 30, 2019
                   Filed: March 14, 2019




                              1
Christian J. Riddell, Esq.                  Charles F. Johns, Esq.
Stedman & Riddell, PLLC                     Amy M. Smith, Esq.
Martinsburg, West Virginia                  Steptoe & Johnson PLLC
Counsel for Jeremiah Goodwin                Bridgeport, West Virginia
                                            Counsel for Shepherd University
Charles F. Printz, Jr., Esq.
Christopher Dulany Petersen, Esq.           Meredith J. Risati, Esq.
Bowles Rice LLP                             Steptoe & Johnson PLLC
Martinsburg, West Virginia                  Canonsburg, Pennsylvania
Counsel for the City of Shepherdstown       Counsel for Shepherd University




JUSTICE ARMSTEAD delivered the Opinion of the Court.
JUSTICE WORKMAN dissents and reserves the right to file a dissenting Opinion.




                                        2
                              SYLLABUS BY THE COURT


       1. “In an action for malicious prosecution, plaintiff must show: (1) that the

prosecution was set on foot and conducted to its termination, resulting in plaintiff’s

discharge; (2) that it was caused or procured by defendant; (3) that it was without probable

cause; and (4) that it was malicious. If plaintiff fails to prove any of these, he can not

recover.” Syl. pt. 1, Radochio v. Katzen, 92 W.Va. 340, 114 S.E. 746 (1922).


       2. “In order for a plaintiff to prevail on a claim for intentional or reckless infliction

of emotional distress, four elements must be established. It must be shown: (1) that the

defendant’s conduct was atrocious, intolerable, and so extreme and outrageous as to exceed

the bounds of decency; (2) that the defendant acted with the intent to inflict emotional

distress, or acted recklessly when it was certain or substantially certain emotional distress

would result from his conduct; (3) that the actions of the defendant caused the plaintiff to

suffer emotional distress; and, (4) that the emotional distress suffered by the plaintiff was

so severe that no reasonable person could be expected to endure it.” Syl. pt. 3, Travis v.

Alcon Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998).




                                               3
Justice Armstead:


       This action is before this Court upon consolidated appeals filed by Jeremiah

Goodwin (“Goodwin”), the plaintiff below, from two orders entered in the Circuit Court

of Jefferson County which dismissed Goodwin’s complaint for malicious prosecution and

intentional infliction of emotional distress. The first order, entered on September 8, 2017,

granted the motion to dismiss filed by defendant City of Shepherdstown

(“Shepherdstown”).1 The second order, entered on February 28, 2018, granted the motion

for judgment on the pleadings filed by Shepherd University (“University”).


       Upon review, this Court finds Goodwin’s appeals to be without merit. Therefore,

the orders entered by the Circuit Court on September 8, 2017, and February 28, 2018, are

affirmed.


                           I. Factual and Procedural Background
       On April 12, 2017, Goodwin filed a complaint in the Circuit Court of Jefferson

County against Shepherdstown and the University. The factual allegations in the complaint

included the following:


       C.P., a University student, was sexually assaulted on the campus by an unknown

assailant.2 The assault occurred on February 1, 2015, between 7:40 p.m. and 7:55 p.m.


1
  Shepherdstown’s correct name, inaccurately set forth in the pleadings, is the Corporation
of Shepherdstown.
2
  Due to the sensitive nature of this matter, we refer to the victim by her initials. See W.Va.
R. App. P. 40(e) (restricting a victim’s personal identification in crimes of a sexual nature).

                                              4
C.P. called 911 and stated that, although she could not see the assailant’s face, he was

between 5’8” and 5’10,” wearing a black beanie and a black winter jacket. The police

issued a warning notification for the campus and received two calls in response. The first

call came from a female student whom Goodwin had approached that evening asking for a

date. The second call concerned a different male individual. According to Goodwin, the

police did not follow up on the second call, even though the description of the individual

more closely matched the description given by C.P. during her 911 call. Goodwin, 6’3,”

was wearing a black shirt with a hood, not a winter jacket or a beanie.


       On February 3, 2015, Goodwin was arrested. The arrest was pursuant to an arrest

warrant issued upon a finding of probable cause by a Jefferson County magistrate.

Goodwin alleged that a report later filed by the University police was falsified to state that

C.P. described her assailant as wearing a black shirt with a hood.


       Goodwin further alleged in the complaint that an alibi witness was suppressed.

According to Goodwin, Lisa Olney, a restaurant owner, called the Shepherdstown police

in response to a newspaper article she read about the assault. Soon after, Ms. Olney was

interviewed by Shepherdstown and University police officers. She told the officers that

Goodwin was in the restaurant at the time of the assault. Goodwin alleges that the police

falsely told Ms. Olney that the time stated in the newspaper was inaccurate. As alleged in

the complaint, the officers made no notes of the interview and never disclosed Ms. Olney’s

evidence to Goodwin. According to Goodwin, it was not until his current counsel was




                                              5
appointed, over a year after the initial arrest, that the defense discovered Ms. Olney’s alibi

evidence.


       In January 2016, the Jefferson County grand jury returned an indictment charging

Goodwin with three felonies committed on February 1, 2015, against C.P.: two counts of

first degree sexual abuse and one count of assault during the commission of a felony.3

However, the Circuit Court entered an order in September 2016 which dismissed all

charges against Goodwin “without prejudice.”


       As reflected in the order, the dismissal was upon the motion of the State for a

dismissal without prejudice “at this time,” based upon “anticipated DNA results being

unavailable and no current date when, or even if, such results would be available.”

Moreover, the order indicated that the State’s motion was with the agreement of the victim.

Goodwin alleges that between his arrest and the dismissal of the charges he was

incarcerated for six months, suffered financial hardships, missed employment

opportunities, and underwent treatment for psychological issues.



3
 Although the Circuit Court resolved the current action under W.Va. R. Civ. P. 12(b)(6)
and W.Va. R. Civ. P. 12(c), the Circuit Court took judicial notice of various court
documents and proceedings in Goodwin’s underlying criminal case. Those matters
included (1) the arrest warrant, (2) the fact that Goodwin was held over following a
preliminary hearing and (3) the indictment. See W.Va. R. Evid. 201 and 202 (addressing
the parameters of judicial notice). See also Louis J. Palmer, Jr., and the Hon. Robin Jean
Davis, Litigation Handbook on West Virginia Rules of Civil Procedure, p. 415 (5th ed.
2017) (“The Supreme Court may consider judicially noticed documents without converting
a motion to dismiss into a motion for summary judgment.”).


                                              6
       Goodwin’s complaint against Shepherdstown and the University set forth claims for

malicious prosecution and the intentional infliction of emotional distress. With regard to

malicious prosecution, Goodwin alleged that the Shepherdstown and University police

officers committed misconduct by suppressing the alibi evidence of Ms. Olney. Goodwin

further alleged that the State, “after being informed of the existence of [Goodwin’s] alibi

witness, continued to prosecute [Goodwin] without any probable cause to believe he had

committed the crime.” As to intentional infliction of emotional distress, Goodwin alleged

that the Shepherdstown and University police officers engaged in outrageous conduct, i.e.,

falsely charging him with the assault of C.P. and suppressing the alibi evidence, thereby

subjecting him to wrongful imprisonment and the stigma of being branded a sex offender.

Goodwin demanded compensatory and punitive damages.4


       On June 23, 2017, Shepherdstown filed a motion to dismiss, followed by the

University’s motion, in September 2017, for judgment on the pleadings. Both motions

sought the dismissal of Goodwin’s malicious prosecution and intentional infliction of

emotional distress claims.    The Circuit Court granted Shepherdstown’s motion on

September 8, 2017, and the University’s motion on February 28, 2018.


       The two dismissal orders are nearly identical. The Circuit Court determined that

Goodwin’s complaint failed to establish a claim of malicious prosecution because the



4
 Neither the police officers, individually, nor the Jefferson County prosecutor were made
parties to this action.


                                            7
underlying criminal case (1) had not been “procured” by Shepherdstown or the University,

(2) was not without probable cause, nor was it malicious in view of the probable cause

findings evidenced by the arrest warrant, Goodwin’s preliminary hearing and the

indictment, and (3) was dismissed without prejudice on the motion of the prosecutor.


       The Circuit Court also determined that Goodwin’s complaint failed to establish a

claim of intentional infliction of emotional distress. The Circuit Court rejected Goodwin’s

assertion that his imprisonment was connected to the failure of the police to disclose the

alibi evidence. Emphasizing that the duty to disclose the alibi evidence to Goodwin rested

with the prosecutor and not the police officers, the Circuit Court concluded that Goodwin’s

incarceration was predicated on multiple findings of probable cause and, consequently,

subject to the discretion of the prosecutor.


       Finally, stating that the officers had acted within their official capacities when they

interviewed alibi witness Lisa Olney, the Circuit Court concluded that Goodwin’s claims

of malicious prosecution and intentional infliction of emotional distress, against

Shepherdstown and the University, were precluded by qualified governmental immunity.


                                   II. Standards of Review
       Goodwin’s claims against Shepherdstown were dismissed pursuant to West

Virginia Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief

can be granted.” In syllabus point 3 of Chapman v. Kane Transfer Company, Inc., 160

W.Va. 530, 236 S.E.2d 207 (1977), this Court observed: “The trial court, in appraising the

sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint

                                               8
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. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).”


       Moreover, although appellate review of an order granting a motion to dismiss is de

novo, syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770,

461 S.E.2d 516 (1995), the allegations of a complaint dismissed under Rule 12(b)(6) must

be taken as true. Syl. pt. 1, Wiggins v. Eastern Associated Coal Corp., 178 W.Va. 63, 357

S.E.2d 745 (1987). Nevertheless, the complaint “must articulate sufficient information to

outline the elements of a claim or permit inferences to be drawn that these elements exist.”

See Louis J. Palmer, Jr., and the Hon. Robin Jean Davis, Litigation Handbook on West

Virginia Rules of Civil Procedure, p. 408 (5th ed. 2017).


       Goodwin’s claims against the University were dismissed pursuant to the

University’s motion under Rule 12(c) for judgment on the pleadings. As this Court noted

in syllabus point 3 of Copley v. Mingo County Board of Education, 195 W.Va. 480, 466

S.E.2d 139 (1995): “A circuit court, viewing all the facts in a light most favorable to the

nonmoving party, may grant a motion for judgment on the pleadings only if it appears

beyond doubt that the nonmoving party can prove no set of facts in support of his or her

claim or defense.”5



5
  Motions under Rule 12(b)(6) and Rule 12(c) are similar, although a Rule 12(c) motion
applies where the invalidity of the plaintiff’s action was not apparent at an earlier stage of
the proceedings. Marlyn E. Lugar and Lee Silverstein, West Virginia Rules of Civil
Procedure, p. 104 (1960). Moreover, as noted in Louis J. Palmer, Jr., and the Hon. Robin
Jean Davis, Litigation Handbook on West Virginia Rules of Civil Procedure, p. 423-24 (5th
ed. 2017), in the context of Rule 12(c): “Although the appellate court must view well-
                                              9
                                        III. Discussion
                                             A.
       Goodwin’s assignments of error primarily concern the required elements of a

malicious prosecution claim, initially recognized by this Court in Radochio v. Katzen, 92

W.Va. 340, 114 S.E. 746 (1922). Syllabus point 1 of Radochio holds:


               In an action for malicious prosecution, plaintiff must show: (1) that
       the prosecution was set on foot and conducted to its termination, resulting in
       plaintiff’s discharge; (2) that it was caused or procured by defendant; (3) that
       it was without probable cause; and (4) that it was malicious. If plaintiff fails
       to prove any of these, he can not recover.


Accord syl. pt. 2, Norfolk S. Ry. Co. v. Higginbotham, 228 W.Va. 522, 721 S.E.2d 541

(2011). See generally 12A M.J., Malicious Prosecution, §§ 1-32 (2015).


       Goodwin contends that the Circuit Court committed error by holding that he cannot

meet the favorable termination standard for a malicious prosecution action because the

underlying criminal case was dismissed “without prejudice,” i.e., the criminal case was not

terminated resulting in Goodwin’s discharge. The favorable termination standard is

reflected in the opinion of the Supreme Court of the United States in Heck v. Humphrey,

512 U.S. 477 (1994). Writing for the majority, Justice Scalia stated: “One element that

must be alleged and proved in a malicious prosecution action is termination of the prior

criminal proceeding in favor of the accused.” 512 U.S. at 484. Such a requirement, Justice

Scalia noted, avoids parallel, conflicting litigation wherein the plaintiff completes a


pleaded facts in the light most favorable to the plaintiff, as the nonmovant, the plaintiff
must plead enough facts to state a claim to relief that is plausible on its face.”
                                             10
successful tort action after being convicted of the underlying crime. To permit a convicted

defendant to proceed with a malicious prosecution claim would, in effect, constitute an

unwarranted “collateral attack on the conviction through the vehicle of a civil suit.” 512

U.S. at 484.


       Goodwin cites D’Amico v. Correctional Medical Care, Inc., 991 N.Y.S.2d 687

(2014). In D’Amico, the Appellate Division confirmed that any disposition of a criminal

action “that does not terminate it, but permits it to be renewed, cannot serve as a foundation

for a malicious prosecution action.” 991 N.Y.S.2d at 693. D’Amico further states,

however, that a dismissal without prejudice “qualifies as a final, favorable termination if

the dismissal represents the formal abandonment of the proceedings by the prosecutor.”

991 N.Y.S.2d at 693-94. Goodwin asserts that his malicious prosecution claim can go

forward because the State has abandoned the underlying case by showing no inclination to

pursue the charges following the dismissal of the indictment in September 2016.


       Nevertheless, the September 2016 order states that dismissal was upon the State’s

motion for a dismissal without prejudice “at this time,” based upon “anticipated DNA

results being unavailable and no current date when, or even if, such results would be

available.” The order also stated that the motion was with the agreement of the victim.

Consequently, the dismissal of the charges against Goodwin was procedural in nature,

rather than reflective of his innocence or of some legal impediment barring future

prosecution. This Court agrees with the following assessment expressed by the University:




                                             11
               There is nothing to suggest in the Order Dismissing Indictment that
       there was a determination as to the invalidity of Petitioner’s criminal charges
       or indictment. * * * [B]y dismissing Petitioner’s criminal case without
       prejudice, the Circuit Court clearly did not foreclose the Prosecutor from
       refiling the case upon the DNA evidence being made available or the victim
       wishing to refile charges against Petitioner. Furthermore, the Prosecutor
       specifically moved to dismiss the indictment “without prejudice at this time,”
       therefore leaving open the possibility that these charges could be refiled at
       any time.


       In Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379 (4th Cir. 2014),

the Court of Appeals confirmed that to satisfy the favorable termination requirement for a

malicious prosecution action, the plaintiff must show that the adverse proceedings were

favorably terminated in such a manner that they cannot be revived. The Court of Appeals

noted, for example, that the grant of a new trial would merely constitute “a procedural

victory, which would simply postpone the proceedings’ ultimate outcome.” Such a victory

would not terminate the proceedings. 767 F.3d at 390.


       Consequently, we find that the order entered by the circuit court dismissing the

indictment “without prejudice” upon the State’s motion to dismiss “at this time” due to the

unavailability of evidence did not satisfy the first requirement for a malicious prosecution

action set forth in syllabus point 1 of Radochio v. Katzen, 92 W.Va. 340, 114 S.E. 746

(1922), “that the prosecution was set on foot and concluded to its termination, resulting in

plaintiff’s discharge.”




                                             12
         The dismissal order herein did not speak to the validity of the charges, and this Court

cannot say as a matter of law that the charges will not be revived. This Court finds

Goodwin’s assertion of abandonment without merit.


                                               B.
         Under Radochio, and later expressed by this Court in Norfolk Southern Railway

Company v. Higginbotham, 228 W.Va. 522, 721 S.E.2d 541 (2011), and Hines v. Hills

Department Stores, Inc., 193 W.Va. 91, 454 S.E.2d 385 (1994), a plaintiff cannot recover

on a malicious prosecution claim if he or she fails to prove any of the four requirements of

(1) favorable termination, (2) procurement, (3) lack of probable cause, and (4) malice.

Here, viewing the complaint in the light most favorable to Goodwin, the complaint failed

to allege a favorable termination of the underlying criminal charges. Therefore, the claim

of malicious prosecution cannot proceed. Goodwin’s assignments of error concerning the

remaining three requirements are interrelated, and we also find those assignments without

merit.


         The allegations in Goodwin’s complaint regarding the requirements of procurement,

lack of probable cause, and malice are that the Shepherdstown and University police

officers (1) altered C.P.’s description of the assailant’s clothing to match the clothing worn

by Goodwin, (2) falsely related the time of the assault to Ms. Olney to induce her silence

and (3) failed to disclose the alibi evidence to the prosecutor.


         In Norfolk Southern Railway Company, supra, this Court observed that

procurement, within the context of a malicious prosecution action, “requires more than just

                                               13
the submission of a case to a prosecutor; it requires that a defendant assert control over the

pursuit of the prosecution.” 228 W.Va. at 528, 721 S.E.2d at 547. See Black’s Law

Dictionary 1401 (10th ed. 2014) (defining procurement as the “act of getting or obtaining

something or of bringing something about.”).


       Here, the Circuit Court took judicial notice of various documents and proceedings

in Goodwin’s criminal case, including (1) the arrest warrant, (2) the fact that Goodwin was

held over following a preliminary hearing and (3) the indictment, all three of which resulted

from findings of probable cause. See n. 3, supra. Viewing the complaint favorably to

Goodwin, the warrant for Goodwin’s arrest was issued prior to the police report in which

the description of the assailant was allegedly falsified and prior to the police interview of

Ms. Olney. Moreover, the complaint alleges: “The state, after being informed of the

existence of Plaintiff’s alibi witness, continued to prosecute Plaintiff without any probable

cause to believe he had committed the crime.” (Emphasis added). Thus, control of the

criminal case, including Goodwin’s pretrial incarceration, rested with the prosecutor, who

would necessarily view Goodwin’s alibi evidence as subject to cross-examination, rather

than constituting an absolute defense. The allegations of the complaint are insufficient to

establish control or procurement by the Shepherdstown and University police.


       Goodwin further contends that the complaint established the “without probable

cause” requirement under Radochio because the probable cause findings in the underlying

criminal case were precluded by police misconduct. In that regard, he also asserts that the

suppression of the alibi evidence was malicious.

                                             14
       However, the Circuit Court took judicial notice that Goodwin was arrested pursuant

to an arrest warrant which could not have been issued without the magistrate making a

determination that there was sufficient probable cause to believe that Goodwin committed

the assault of C.P. Goodwin’s complaint indicates that the warrant was issued prior to any

alleged misconduct by the police. Later, a preliminary hearing was held wherein probable

cause was found to support the charges and to continue the prosecution. Thereafter, a grand

jury found probable cause to believe that Goodwin committed two counts of first degree

sexual abuse and one count of assault during the commission of a felony. This Court finds

the complaint insufficient to undermine those findings, particularly, again, the finding of

probable cause regarding the arrest warrant which was issued prior to any alleged police

misconduct.


       Nor does the complaint satisfy the malice requirement for a malicious prosecution

claim with respect to the alleged suppression of the alibi evidence. This Court is aware of

no requirement that the police must directly inform the defense of exculpatory or alibi

evidence found during the course of a criminal investigation. Such a requirement more

appropriately lies between the police and the prosecutor who must then disclose

exculpatory evidence to the defense pursuant to Brady v. Maryland, 373 U.S. 83 (1963).6


    Goodwin’s complaint alleges that the State, “after being informed of the existence of

Plaintiff’s alibi witness,” continued to prosecute Goodwin on the criminal charges. The


6
  Brady stands for the principle that an accused has a due process right to favorable
evidence possessed by the prosecution. See generally W.Va. R. Crim. P. 16(a) Disclosure
of Evidence by the State.
                                            15
charges were later dismissed pursuant to the September 2016 order, not on the basis of the

alibi evidence, but because of the unavailability of the DNA results and upon the consent

of C.P.


    If Goodwin had an alibi defense, he would certainly have been the best person to

possess the information. In syllabus point 1 of State v. Youngblood, 221 W.Va. 20, 650

S.E.2d 119 (2007), this Court held that, because a police investigator’s knowledge of

evidence in a criminal case is imputed to the prosecutor, a prosecutor’s disclosure duty

under Brady includes the disclosure of evidence “that is known only to a police investigator

and not to the prosecutor.” Nevertheless, this Court clarified in Youngblood that evidence

is considered suppressed when (1) the evidence was known, or reasonably should have

been known to the government, (2) the evidence was not otherwise available to the

defendant through the exercise of reasonable diligence, and (3) the government either

willfully or inadvertently withheld the evidence until it was too late for the defense to make

use of it. 221 W.Va. at 31 n. 21, 650 S.E.2d at 130 n. 21 (Emphasis added).


    While Goodwin’s complaint suggests police misconduct, this Court is of the opinion

that those allegations fail in these circumstances to reach the level of malice required to

sustain a malicious prosecution claim.7



7
 According to the complaint, at some point the prosecutor was aware of the alibi witness,
yet continued to prosecute Goodwin. See Thomas M. Fleming, Annotation, Liability of
Police or Peace Officers for False Arrest, Imprisonment, or Malicious Prosecution as
Affected by Claim of Suppression, Failure to Disclose, or Failure to Investigate
Exculpatory Evidence, 81 A.L.R.4th 1031, 1038 (1990) (Although decisions vary, in most
cases involving an alleged failure by police to investigate a plaintiff’s alibi, or an alleged
                                             16
                                               C.
       Goodwin contends that the Circuit Court committed error in dismissing his claim of

intentional infliction of emotional distress where the complaint alleged that the misconduct

committed by the Shepherdstown and University police officers was outrageous and

subjected him to wrongful imprisonment and the stigma of being branded a sex offender.

In syllabus point 3 of Travis v. Alcon Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419

(1998), this Court held:


               In order for a plaintiff to prevail on a claim for intentional or reckless
       infliction of emotional distress, four elements must be established. It must
       be shown: (1) that the defendant’s conduct was atrocious, intolerable, and so
       extreme and outrageous as to exceed the bounds of decency; (2) that the
       defendant acted with the intent to inflict emotional distress, or acted
       recklessly when it was certain or substantially certain emotional distress
       would result from his conduct; (3) that the actions of the defendant caused
       the plaintiff to suffer emotional distress; and, (4) that the emotional distress
       suffered by the plaintiff was so severe that no reasonable person could be
       expected to endure it.


Accord syl. pt. 5, Herbert J. Thomas Mem’l Hosp. Assoc. v. Nutter, 238 W.Va. 375, 795

S.E.2d 530 (2016). See Hines v. Hills Dep’t Stores, Inc., 193 W.Va. 91, 98, 454 S.E.2d

385, 392 (1994) (Cleckley, J., concurring).8



failure to disclose discrepancies in witnesses’ descriptions, actions for false imprisonment
or malicious prosecution have not been sustained.).
8
  The Circuit Court cited similar language found in Courtney v. Courtney, 186 W.Va. 597,
601, 413 S.E.2d 418, 422 (1991), and concluded:
               In order to prevail on his claim for Intentional Infliction of Emotional
       Distress, the Plaintiff must show 1) the nonmoving party’s conduct was
       intentional or reckless; 2) the conduct was outrageous and intolerable in that
       it offends against the generally accepted standards of decency and morality;
                                               17
       Focusing on the alleged suppression of the alibi evidence, Goodwin cites Owens v.

Baltimore City State’s Attorneys Office, supra, in which the Court of Appeals stated that

the rule in Brady, that the suppression of exculpatory evidence violates a criminal

defendant’s right to due process, extends to a police officer’s failure to disclose such

evidence to the prosecutor. 767 F.3d at 396. Thus, Goodwin asserts that the suppression

of the alibi evidence satisfies the requirement that the conduct was outrageous.


       However, viewing the complaint in the light most favorable to Goodwin, nothing in

the complaint suggests that the police interfered with Goodwin’s ability to discover the

alibi evidence of Ms. Olney himself. In United States v. Marrero, 904 F.2d 251 (5th Cir.

1990), the Fifth Circuit Court of Appeals made clear: “While the Supreme Court in Brady

held that the Government may not properly conceal exculpatory evidence from a defendant,

it does not place any burden upon the Government to conduct a defendant’s investigation

or assist in the presentation of the defendant’s case.” 904 F.2d at 261. In the current matter,

the University observed:


             Petitioner’s own alibi on the night of the assault could not possibly
       have been concealed from him. Petitioner cannot prove any set of facts to
       show that he was not able to contact Ms. Olney, the owner of the restaurant,
       through the exercise of reasonable diligence to obtain the same statement that
       Ms. Olney allegedly gave University officers to establish his “airtight alibi.”




       3) a causal connection between the conduct and the emotional distress
       allegedly suffered by the moving party; and 4) severe emotional distress.
                                              18
       Moreover, in dismissing Goodwin’s claim for intentional infliction of emotional

distress, the Circuit Court concluded that Goodwin failed to sufficiently allege that the

actions of Shepherdstown and the University caused him to suffer emotional harm. The

Circuit Court concluded:


              The Plaintiff alleges that his distress arose from his imprisonment
       pending his trial, but his imprisonment would not have suddenly ended if
       only the [respondents] had provided him with Ms. Olney’s statement. The
       decision to continue to prosecute the Plaintiff, and therefore continue to hold
       him in custody, was within the sole discretion of the Jefferson County
       Prosecuting Attorney and was predicated on three distinct findings of
       probable cause. The Plaintiff’s knowledge of Ms. Olney’s statement would
       not have required his release from prison.


       This Court finds no reason to disturb the conclusion of the Circuit Court. The

complaint fails to set forth sufficient allegations under Travis v. Alcon Laboratories, Inc.,

to sustain a claim against Shepherdstown and the University for intentional infliction of

emotional distress. Goodwin’s arguments to the contrary are notably unconvincing.




                                        IV. Conclusion
       The Circuit Court correctly dismissed Goodwin’s complaint against Shepherdstown

and the University pursuant to West Virginia Rule of Civil Procedure 12(b)(6) and Rule

12(c). Therefore, the orders entered by the Circuit Court on September 8, 2017, and

February 28, 2018, are affirmed.




                                                                                  Affirmed.

                                             19
