                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


David Taylor,
Plaintiff Below, Petitioner                                                        FILED
                                                                              November 21, 2014
                                                                             RORY L. PERRY II, CLERK
vs) No. 14-0567 (Kanawha County 13-C-1996)                                 SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
George M. Hill,

Defendant Below, Respondent




                              MEMORANDUM DECISION

       Petitioner David Taylor, appearing pro se, appeals the order of the Circuit Court of
Kanawha County, entered May 14, 2014, that dismissed his civil action against Respondent
George M. Hill. Respondent, appearing by counsel John P. Fuller and Andrew R. Herrick, filed a
response.

        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.

        Petitioner is an inmate in the custody of the West Virginia Division of Corrections
(“DOC”). Respondent is the superintendent of West Virginia Correctional Industries (“WVCI”),
an agency within the DOC.1 According to petitioner, he had a prison job as an administrative clerk
for respondent and also worked as a replacement worker in the numerous manufacturing shops
WVCI had at Mt. Olive Correctional Complex in Fayette County, West Virginia.

        Petitioner filed a civil complaint against respondent in the Circuit Court of Fayette County
on October 21, 2013. Petitioner’s complaint alleged that on a day in July of 2011,2 he injured his
right leg and back in an accident occurring in WVCI’s soap shop at Mt. Olive. It was a trip-and-fall
accident, where petitioner tripped over a skid jack that another inmate worker allegedly carelessly
put in petitioner’s work area. The accident also caused a forty-five pound wooden skid to fall onto


       1
           See Correctional Industries Act of 2009, W.Va. Code §§ 25-7-1 to -16.
       2
        According to an August 22, 2013, letter from WVCI’s insurer, the statute of limitations
was waived to the extent that petitioner could file his action any time up to October 21, 2013.

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his lower right leg.3 The complaint also averred that, at the time of the accident, at least twenty
inmate positions were unfilled and that one supervisor’s position was also vacant, although the
complaint does not connect this understaffing to petitioner’s injuries. Petitioner’s complaint
further alleged that respondent was liable for his alleged injuries because:

       At all times during the events disclosed and described herein [respondent] was
       directly responsible for inmate worker safety, to include safety training, at the
       various shops, plants, and centers that [WVCI] operated at [Mt. Olive] and was
       further responsible for . . . inmate hiring at [WVCI] and through [respondent’s]
       negligence alone, [petitioner] was working in an unsafe environment on the day in
       question. [Petitioner] further asserts that [respondent] is responsible for the incident
       in which [petitioner’s] leg and back were injured[.]

(Footnote omitted.) Finally, petitioner sought unspecified compensatory and punitive damages.

        Because respondent is a state official, the Circuit Court of Fayette County transferred
petitioner’s action to the Circuit Court of Kanawha County.4 On February 25, 2014, respondent
filed a motion to dismiss the action. The Circuit Court of Kanawha County held a hearing on the
motion on May 2, 2014.5 On May 14, 2014, the circuit court dismissed petitioner’s action. In its
order the circuit court first noted that, in his complaint, petitioner indicated that he was suing
respondent individually, but found that all of petitioner’s allegations arose from respondent’s
performance of his duties as superintendent of WVCI. The circuit court further determined that
while petitioner sought monetary damages, he expected those damages to be paid by the DOC, and
not respondent individually. Thus, the circuit court found that petitioner sued respondent only in
his official capacity.

        Second, the circuit court found that respondent had qualified immunity from petitioner’s
action because (1) all of respondent’s alleged actions or non-actions were within the scope of his
employment; (2) all of respondent’s acts, as petitioner acknowledged in his complaint, were (a)
discretionary in nature; and (b) constituted decisions that respondent was authorized to make with
regard to staffing and training, to the best of respondent’s judgment; and (3) none of respondent’s
discretionary decisions were violative of any clearly established law. Therefore, the circuit court
dismissed the action.6

       3
         While petitioner believed that the treatment was inadequate, it is undisputed that he
received treatment for his injuries at Mt. Olive.
       4
           See Chance v. Hill, 224 W.Va. 626, 629-30, 687 S.E.2d 564, 567-68 (2009) (inmate
plaintiff provided required pre-suit notice to “State agency” and further conceded that respondent
was state employee, making venue proper only in Kanawha County pursuant to West Virginia
Code § 14-2-2(a)(1)).
       5
           Petitioner appeared by video conference.
       6
           While it is possible to waive the defense of qualified immunity, the defense is available
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        Petitioner now appeals the circuit court’s May 14, 2014, order dismissing his action.
“Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo.”
Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac Buick, Inc., 194 W.Va. 770, 773, 461
S.E.2d 516, 519 (1995).

                  Whether petitioner sued respondent in his individual capacity

        The parties dispute whether petitioner sued respondent in his individual capacity. From our
own reading of the complaint, we find that the circuit court correctly determined that (a) all of
petitioner’s allegations arose from respondent’s performance of his duties as superintendent of
WVCI; and (b) while petitioner sought monetary damages, he expected those damages to be paid
by the DOC, and not respondent individually. The circuit court’s findings are supported by
petitioner’s explanation in his brief as to why he alleged that respondent was “directly responsible”
for his accident. Petitioner explains that he made such allegations so that he could meet the
“deliberate indifference” standard that is required to be satisfied when an inmate alleges that a
prison official has violated constitutional minimum standards with regard to the inmate’s safety
and well-being. See, e.g., Syl. Pt. 5, Nobles v. Duncil, 202 W.Va. 523, 526, 505 S.E.2d 442, 445
(1998) (holding that, to establish prison official’s “deliberate indifference” to inmate’s serious
medical need, treatment, or lack thereof, must be so grossly incompetent, inadequate, or excessive
as to shock conscience or be intolerable to fundamental fairness). Thus, we find that petitioner
mistakenly conflated what it means to sue an official in his individual capacity with the type of
allegations necessary to support a claim of “deliberate indifference” on the part of the official.
Therefore, we conclude that the circuit court correctly found that petitioner sued respondent only
in his official capacity.

              Whether respondent had qualified immunity from petitioner’s action

        The doctrine of qualified immunity affords “immunity to the State and its [public] officer
for discretionary acts negligently committed within the scope of his employment.” Clark v. Dunn,
195 W.Va. 272, 277, 465 S.E.2d 374, 379 (1995). We recently set forth the standard for
determining whether a public officer is entitled to qualified immunity from suit, as follows:

       A public officer is entitled to qualified immunity from civil damages for
       performance of discretionary functions where: (1) a trial court finds the alleged
       facts, taken in the light most favorable to the party asserting injury, do not
       demonstrate that the officer’s conduct violated a constitutional right; or (2) a trial
       court finds that the submissions of the parties could establish the officer’s conduct
       violated a constitutional right but further finds that it would be clear to any
       reasonable officer that such conduct was lawful in the situation confronted.
       Whenever the public officer’s conduct appears to infringe on constitutional

so long as the agency’s insurance policy does not waive it. See Syl. Pt. 6, Clark v. Dunn, 195
W.Va. 272, 274, 465 S.E.2d 374, 376 (1995). Petitioner did not allege that WVCI’s insurance
policy waived the qualified immunity defense. See Discussion, infra.
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       protections, the lower court must consider both whether the officer’s conduct
       violated a constitutional right as well as whether the officer’s conduct was
       unlawful.

Syl. Pt. 6, City of Saint Albans v. Botkins, 228 W.Va. 393, 394-95, 719 S.E.2d 863, 864-65 (2011).
In addition, as a general matter, “[t]he ultimate determination of whether qualified or statutory
immunity bars a civil action is one of law for the court to determine.” Syl. Pt. 5, in part, Botkins,
228 W.Va. at 394, 719 S.E.2d at 864 (internal citations and omissions omitted).

        Petitioner asserts that respondent did not have qualified immunity from suit because
respondent violated various federal and state statutes, rules, and regulations requiring that inmate
workers be adequately trained and that prison workshops be sufficiently staffed. Respondent
counters that nothing in those statutes, rules, and regulations mandates that inmates be
trained—and shops be staffed—in the manner petitioner thinks best. We agree and note that
respondent’s argument is consistent with case law regarding other aspects of inmates’ welfare. See
U.S. 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 the most
sophisticated care that money can buy.”) (Emphasis in original.) Another factor that weighs in
favor of respondent having qualified immunity is the fact that respondent must manage training
and staffing issues within the volatile prison context. See Nobles, 202 W. Va. at 534, 505 S.E.2d at
453 (“We must be careful not to substitute our judgment for that of prison administrators.”);
O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (“[E]valuation of penological objectives is
committed to the considered judgment of prison administrators” because it is prison administrators
who have to “anticipate security problems and to adopt innovative solutions to the intractable
problems of prison administration.”) (Internal quotations and citations omitted.) Given the
deference the law provides respondent in carrying out his duties, we find that the circuit court did
not err in finding the allegations in petitioner’s complaint insufficient to show a violation of a
clearly established law or constitutional provision. We conclude that the circuit court correctly
dismissed the action because respondent enjoyed qualified immunity. See also Clark, 195 W.Va.
at 278-79, 465 S.E.2d at 380-81 (conservation officer and Department of Natural Resources had
qualified immunity from suit alleging that officer was negligent in his “discretionary judgments,
decisions, and actions” with regard to accidental wounding of hunter).

           For the foregoing reasons, we affirm.

                                                                                          Affirmed.
ISSUED: November 21, 2014

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