                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                                      FILED
                                                                                   February 22, 2013
Keith Wesley Johnson,                                                           RORY L. PERRY II, CLERK
Plaintiff Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

vs.) No. 11-1395 (Kanawha County 11-C-1340)

Karen Townsend; Linda Perkins; Shawn Straughn;

Wexford Health Sources, Inc.; St. Mary’s Correctional Center;

Melinda Sigler, Jack Stollings; and William Fox,

Defendants Below, Respondents


                               MEMORANDUM DECISION

        Petitioner Keith Wesley Johnson, pro se, appeals the circuit court’s August 25, 2011 order
dismissing his civil complaint against various prison officials in their individual and official
capacities. The State Respondents, by Billie Jo Streyle, their attorney, filed a response.1

       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 is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.

       As reflected by the circuit court’s ordering dismissing his complaint,2 petitioner sued a
number of different prison officials “in their individual and official capacities.” The circuit court
described petitioner’s claims as follows:


1
 The State Respondents include Karen Townsend, Shawn Straughn, St. Mary’s Correctional
Center, Melinda Sigler, Jack Stollings, and William Fox.
2
  On appeal, no appendix was filed. See Rev. R.A.P. 6(c) (“All parties to the case are responsible
for determining the contents of the appendix, and the petitioner is responsible for preparing and
filing the appendix as set forth in Rule 7.”). Petitioner did submit a copy of the circuit court’s order
with his notice of intent to appeal. This Court has caused a copy of the case information sheet and
petitioner’s complaint (with attachments) to be transmitted to it by the circuit clerk.
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                        . . . Plaintiff[ 3 ] alleges that Defendant Sigler disclosed
                personal medical information and when Plaintiff grieved,[ 4 ]
                Defendant Stollings and Fox failed to properly investigate such
                claim. Further, Plaintiff claims that Defendant Perkins and
                Defendant Wexford Health were both negligent in their care of
                Plaintiff.[ 5 ] Lastly, Plaintiff states that Defendant Straughn
                provided false information under oath.[6]

Petitioner sought $1,000,000 in compensatory damages, $2,000,000, in punitive damages, and
$200,000 in nominal damages.7

          The circuit court reviewed petitioner’s complaint before issuance of process and dismissed
it as frivolous in accordance with the West Virginia Prisoner Litigation Reform Act, West Virginia
Code §§ 25-1A-1, et seq.8
3
  Petitioner was an inmate at the St. Mary’s Correctional Center at the time of the alleged
incidents. Subsequently, petitioner was transferred to the Northern Correctional Facility. He has
now been discharged from custody.
4
   From a review of the documents attached to petitioner’s complaint, he exhausted his
administrative remedies at least with respect to his allegation that Officer Sigler improperly
disclosed personal medical information. See Syl. Pt. 3, White v. Haines, 217 W.Va. 414, 618
S.E.2d 423 (2005) (“The plain language of W. Va. Code § 25-1A-2(a) (2000) (Repl.Vol.2004)
directs that ‘[a]n inmate may not bring a civil action until the administrative remedies promulgated
by the [correctional] facility have been exhausted[.]’”).
5
  According to petitioner’s complaint, Wexford Health and its employee Ms. Perkins are
independent contractors charged with providing inmates with medical care. Wexford Health and
Ms. Perkins have not responded to petitioner’s appeal.
6
   The one claim the circuit court did not specifically mention was against Respondent Townsend.
It is petitioner’s opinion that Respondent Townsend is unqualified to serve as law librarian.
7
  According to the brief of the State Respondents, the amount of damages petitioner sought
significantly exceeded the limits of the State’s insurance policy. See Syl. Pt. 2, Pittsburgh Elevator
Co. v. West Virginia Board of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983) (“Suits which seek
no recovery from state funds, but rather allege that recovery is sought under and up to the limits of
the State’s liability insurance coverage, fall outside the traditional constitutional bar to suits
against the State.”). The State Respondents raise this issue, and other additional issues, to support
the dismissal of petitioner’s complaint. However, this Court declines to address these issues
because petitioner’s appeal can be resolved on the issue that the circuit court decided, the frivolity
of his claims.
8
    West Virginia Code § 25-1A-4 provides in pertinent part as follows:

                (a) The court shall, prior to issuance of process, review the
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        On appeal, petitioner argues his claims are not frivolous and that the circuit court should be
reversed and the case remanded for a trial by jury. The State Respondents argue that the circuit
court properly dismissed petitioner’s complaint pursuant to §§ 25-1A-1, et seq.

         The circuit court’s dismissal of petitioner’s civil complaint is reviewed de novo. See Syl.
Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516
(1995) (“Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de
novo.”). Documents attached to petitioner’s complaint can be properly considered in conducting
this review. See Syl. Pt. 1, Forshey v. Jackson, 222 W.Va. 743, 671 S.E.2d 748 (2008) (“A circuit
court ruling on a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil
Procedure may properly consider exhibits attached to the complaint without converting the motion
to a Rule 56 motion for summary judgment.”).

        The most potentially serious of petitioner’s claims is his allegation that Officer Sigler
disclosed his personal medical information causing other inmates to say that he was positive for
HIV, AIDS, and hepatitis. Contrary to his assertions, however, one of the attachments to
petitioner’s complaint indicates that Unit Manager Stollings properly investigated the claim. In his
typed-written response to petitioner’s grievance, Unit Manager Stollings stated that he had spoken
to both Officer Sigler and Nurse Perkins. Unit Manager Stollings ends his response by stating that
“[Officer] Sigler also stated she has not spoke[n] to any staff or inmates concerning your health.”

          Legal principles also argue in favor of affirming the circuit court’s order dismissing
petitioner’s complaint. It is well-established that prison officials are afforded deference in their
management of prisons in that “evaluation of penological objectives is committed to the
considered judgment of prison administrators.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 349,
107 S.Ct. 2400, 2404, 96 L.Ed.2d 282, 290 (1987). This deferential approach is necessary because
it is prison officials who have to “anticipate security problems and to adopt innovative solutions to
the intractable problems of prison administration.” Id. (internal quotations and citations omitted).9

               complaint, petition or other initial pleading to determine whether a
               civil action is frivolous or malicious as defined in subsection (b) of
               this section and fails to state a claim for which relief can be granted
               or seeks monetary relief from a party who is immune from such
               relief. If the complaint, petition or other initial pleading is frivolous
               or malicious, fails to state a claim for which relief can be granted or
               seeks monetary relief from a party who is immune from such relief,
               the court shall not issue process and shall dismiss the case.

               (b) A civil action is frivolous or malicious if it:

               (1) Has no arguable basis in fact or law[.]
9
  Another of petitioner’s specific allegations relates to medical care he claims was inadequate. But
see United States v. DeCologero, 821 F.2d 39, 42 (1st Cir. 1987) (“[Al]though it is plain that an
inmate deserves adequate medical care, he cannot insist that his institutional host provide him with
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Therefore, after careful consideration of petitioner’s complaint, together with the documents
attached to it, this Court concludes that the circuit court did not err in dismissing it.

      For the foregoing reasons, we find no error in the decision of the Circuit Court of Kanawha
County and affirm its August 25, 2011 order dismissing petitioner’s complaint.

                                                                                       Affirmed.


ISSUED: February 22, 2013

CONCURRED IN BY:

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




the most sophisticated care that money can buy.”) (emphasis in original).
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