                           STATE OF WEST VIRGINIA
                         SUPREME COURT OF APPEALS

West Virginia Division of Corrections,
Scott Patterson, and Jason Walton,
Petitioners, Defendants below,                                               FILED
                                                                        November 22, 2019
vs.) No. 18-0705 (Kanawha County 13-C-578)                                    released at 3:00 p.m.
                                                                          EDYTHE NASH GAISER, CLERK
                                                                          SUPREME COURT OF APPEALS
P.R.,                                                                          OF WEST VIRGINIA

Respondent, Plaintiff below.


                            MEMORANDUM DECISION

       The petitioners West Virginia Division of Corrections (“DOC”), Scott Patterson,
and Jason Walton (collectively referred to herein as “the defendants”) filed an interlocutory
appeal of the July 17, 2018, order of the Circuit Court of Kanawha County denying their
motion to alter or amend a judgment. The order that they were seeking to have altered or
amended was the portion of the circuit court’s November 27, 2017, order that denied their
motion for summary judgment on a negligence claim. The defendants argue that they have
qualified immunity from the negligence claim. The respondent P.R.1 (plaintiff below)
argues that the circuit court correctly denied summary judgment on this issue.2

       After considering the parties’ written and oral arguments, as well as the record on
appeal and the applicable law, this Court finds that the defendants are entitled to qualified
immunity from P.R.’s negligence claim. Because our decision relies upon well-settled law,
we find that this case satisfies the “limited circumstances” requirement of Rule 21(d) of
the Rules of Appellate Procedure and is appropriate for disposition in a memorandum
decision. For the reasons set forth below, the circuit court’s decision regarding qualified
immunity for the negligence claim is reversed, and this case is remanded for entry of an
order granting summary judgment to the defendants.


       1
         Due to the sensitive nature of the facts asserted in this case, we adhere to our usual
practice of referring to the alleged victim by her initials only. See, e.g., State v. Edward
Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990); see also W.Va. R.
App. P. 40(e).
       2
        The petitioners, defendants below, are represented by Charles R. Bailey, Esq.,
David J. Mincer, Esq., and Michael W. Taylor, Esq. The respondent, plaintiff below, is
represented by Kerry A. Nessel, Esq.

                                              1
                             Facts and Procedural History

      In 2011, P.R. served a term of incarceration at the Anthony Correctional Center
(“ACC”). The ACC is a facility operated by the DOC that primarily houses young adult
offenders between the ages of eighteen and twenty-five years old, both male and female.
Defendant Patterson was the Warden at ACC, while Defendant Walton was the Associate
Warden.

       P.R. alleges that during the lunch hour on or about September 5, 2011, she entered
the women’s outdoor bathroom facility in the ACC recreation yard. She contends that
inside the bathroom, she was physically restrained and sexually assaulted, both vaginally
and anally, by three male inmates. P.R. asserts that she did not immediately report that she
was raped because the assailants threatened to kill her if she told.

       On September 28, 2011, P.R. informed ACC staff that she had been sexually
assaulted. At the time, she was being transferred out of ACC to a regional jail due to her
violation of institutional rules. A correctional officer wrote the following in an Incident
Report prepared that day:

       . . . [P.R.] also made accusations about how ACC had not protected her and
       that she wanted to go back to the Regional Jail where she wouldn’t be beat
       up and raped. . . . We then asked about the rape, and she said that she had
       told Sgt. Dilley that she was going to be raped, and that he had better do a
       report on that. . . . She claimed that there was three male inmates that had
       raped [her] while she was in the bathroom on the back yard. She claims that
       all three of these guys are still housed here, and that’s why she won’t say
       their names. She claimed that this happened shortly after she had started
       Vocations, on 05 Sept. 2011.

According to the Incident Report, P.R. blamed a Correctional Officer Fox for failing to
adequately supervise the recreation yard. The DOC investigated P.R.’s rape allegation,
ultimately concluding that “due to conflicting statements of the victim and the accused,
and no known independent witnesses or physical evidence, the accusation . . . is
unsubstantiated.”

       P.R. filed this civil action in circuit court in March 2013 contending that the DOC
and its employees failed to provide a safe confinement facility and failed to protect her
from being raped. She asserted claims for violation of multiple state and federal
constitutional rights; intentional infliction of emotional distress/outrage; common law
negligence including negligent supervision, training, and retention of staff and negligent



                                             2
supervision of inmates; invasion of privacy; and civil conspiracy.3 Ultimately, the circuit
court dismissed or granted summary judgment in favor of the defendants on all of P.R.’s
claims except negligence.

       The defendants argued to the circuit court that they were also entitled to summary
judgment on the negligence claim. They asserted that even assuming arguendo there was
negligence on their part, they have qualified immunity because any acts or omissions were
not in violation of a clearly established statutory or constitutional right or law of which a
reasonable person would have known, and were not otherwise fraudulent, malicious, or
oppressive.4

       In response to the defendants’ motion for summary judgment, P.R. argued that a
clearly established law was violated, specifically, DOC Policy Directive 332.02, which
provides in part:

       An inmate may report a sexual assault/abuse to any employee. Any employee
       that receives a report of a sexual assault/abuse or possible sexual
       assault/abuse, whether verbally or in writing, shall immediately notify the
       Shift Commander and complete an Incident Report.

DOC Policy Dir. 332.02(V)(A)(1). 5

       3
         In addition to suing the DOC, Warden Patterson, and Associate Warden Walton,
P.R. also sued Correctional Officer Fox and unknown John Doe defendants. Correctional
Officer Fox was not properly served and was dismissed from the lawsuit.
       4
        See Syl. Pt. 11, W.Va. Reg’l Jail & Corr. Facility Auth., 234 W.Va. 492, 766
S.E.2d 751 (2014), discussed infra.
       5
           The full text of Policy Directive 332.02(V)(A) provides:

       V. PROCEDURE

       A. Reporting of Sexual Assault or Sexual Abuse

                1. An inmate may report a sexual assault/abuse to any
                employee. Any employee that receives a report of a sexual
                assault/abuse or possible sexual assault/abuse, whether
                verbally or in writing, shall immediately notify the Shift
                Commander and complete an Incident Report. One Copy of
                any and all such Incident Reports related to a suspected or an
                alleged Sexual Assault/Abuse will be forward[ed] to the
                Director of Security in the Central Office on the next business
                day.
                                              3
P.R. argued that she had complained to Sergeant Dilley about rude and blatant sexual
comments that male inmates directed toward her, but contrary to this Policy Directive, the
sergeant did not inform the shift commander or file an incident report, and she was
subsequently assaulted.6

       During her discovery deposition, P.R. testified as follows regarding the comments
that male inmates had made to her prior to the alleged assault:

       BY MR. MINCER [defense counsel]:

              Q: [Did] Any of them [the male inmates] threaten you before this
       happened? I’m going to do this or that to you or –
              A. They would just say what they would like to do to me on the rec
       yard, but it wasn’t really a threat.




              2. The Shift Commander shall ensure that the alleged
              victim/inmate and the aggressor are physically separated.

              3. The alleged inmate/victim shall be advised by the employee
              receiving the report and/or the Shift Commander to not shower
              or otherwise clean himself/herself, or if the assault was oral, to
              not drink or brush his/her teeth, or otherwise take any action
              that could damage or destroy evidence.

              4. If the alleged assault has occurred within the previous
              seventy-two (72) hours, or other circumstances dictate,
              arrangements shall be promptly made to have the alleged
              inmate/victim examined by medical services.

The remaining subsections of Policy Directive 332.02(V) specify steps that DOC officials
will make when investigating an “alleged sexual assault,” including how to treat the alleged
victim and the alleged perpetrator.
       6
         P.R. asserts that her complaint to Sergeant Dilley occurred approximately one
week before the alleged assault on September 5, 2011. The DOC denies that there was any
such complaint to Sergeant Dilley, but asserts that even if there was a complaint, based
upon P.R.’s overall description of events it would have occurred months before September
5, 2011. The appendix record on appeal does not contain a deposition of Sergeant Dilley
and, regardless, the exact date of any such complaint is irrelevant to our qualified immunity
analysis on appeal.

                                              4
              Q. Okay. What would they say? What would they say that wanted to
       do to you?
              A. Just –

       MR. NESSEL [plaintiff’s counsel]:

              Go ahead. Tell him verbatim.

       BY MR. MINCER:

              Q. Yeah. That’s – I need the best you can remember of what any of
       these guys told you beforehand.
              A. How if we wasn’t in prison, they’d f*** me real hard and –
              Q. Meaning those three guys in specific told you things like that?
              A. I mean, it was more than just those three guys. It was a group.
              Q. Yeah. Let me – and I don’t mean to interrupt you, but here’s what
       I’m wondering is you’ve told me already that generally the guys in the group
       would say things like to you. And I’m wondering those guys, three guys in
       specific, if they had said things to you like that? And if so, what did they say
       to you?
              A. I mean, they were there whenever they were said and they might’ve
       even said them. But most of the time I wouldn’t even look at them when they
       were saying it to see who said it, you know?
              Q. So it’s kind of like –
              A. I try to ignore it.

       In response to the defendants’ motion for summary judgment, P.R. submitted an
affidavit indicating that if defense counsel would have allowed her to finish her answer
during the deposition, she “would have continued with the following: How the group told
me that they wanted to hit that phat ass, f*** that phat ass, tap that phat ass and other
similar sexual comments.” She further averred that of the approximately ten male inmates
who were saying this to her, three were the perpetrators of the subsequent sexual assault.
She additionally averred that she “informed Sgt. Dilley of the sexual comments mentioned
above approximately one week prior to being gang raped. He did not question me and, to
the best of my knowledge, did not question the group of male inmates who were making
the sexual comments to me.”

       The defendants argued that Policy Directive 332.02 is not a clearly established law
of which a reasonable person would have known for purposes of defeating qualified
immunity, but even if it were, the policy does not apply to a threat of potential future sexual
assault. The defendants argued that the policy only specifies actions that correctional staff
must take after a sexual assault, or an act that may possibly constitute a sexual assault, has
been committed. The circuit court disagreed with the DOC, concluding that the policy is a

                                              5
clearly established law applicable to threatened sexual assault. However, the circuit court
found that there were genuine issues of material fact regarding whether P.R.’s complaint
to Sergeant Dilley was made, when it was made, and whether the contents of P.R.’s alleged
complaint to Sergeant Dilley were sufficiently specific to put the DOC on notice that it
must comply with Policy Directive 332.02.

        Accordingly, by order entered November 27, 2017, the circuit court denied the
defendants’ motion for summary judgment on P.R.’s common law negligence claim.7
Thereafter, the defendants filed their motion to alter or amend the judgment, which was
denied on July 17, 2018. In this appeal, the defendants file an interlocutory challenge to
the circuit court’s refusal to grant summary judgment on the negligence claim on the basis
of qualified immunity.8

                                   Standard of Review

       As an initial matter, we observe that an order denying summary judgment is
ordinarily not appealable. However, when qualified immunity applies, the immune
defendants are protected from the burden of litigation—not merely from an adverse
judgment. See Hutchison v. City of Huntington, 198 W.Va. 139, 148, 479 S.E.2d 649, 658
(1996). Accordingly, “[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). When qualified immunity is at issue,

              [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.

Hutchison, 198 W.Va. at 144, 479 S.E.2d at 654, syl. pt. 1.

        The specific order on appeal in this case is an order denying the defendants’ motion
to alter or amend judgment. “The standard of review applicable to an appeal from a motion
to alter or amend a judgment, made pursuant to W.Va. R. Civ. P. 59(e), is the same standard

       7
           The same order granted summary judgment to the defendants on all remaining
claims.
       8
         The validity of the circuit court’s dismissal of P.R.’s other claims is not currently
before this Court.

                                              6
that would apply to the underlying judgment upon which the motion is based and from
which the appeal to this Court is filed.” Syl. Pt. 1, Wickland v. American Travellers Life
Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998). The underlying order which the
defendants sought to have altered or amended was an order partially denying summary
judgment. “This Court reviews de novo the denial of a motion for summary judgment,
where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley v. State Farm
Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002). Using this plenary standard, we
turn to the parties’ arguments on appeal.

                                         Discussion

       The overarching question on appeal is whether the defendants have qualified
immunity to P.R.’s claim of negligence. The first step in a qualified immunity analysis is
to determine the nature of the governmental actions or omissions in dispute. On that
question, this Court has held the following:

               To determine whether the State, its agencies, officials, and/or
       employees are entitled to immunity, a reviewing court must first identify the
       nature of the governmental acts or omissions which give rise to the suit for
       purposes of determining whether such acts or omissions constitute
       legislative, judicial, executive or administrative policy-making acts or
       involve otherwise discretionary governmental functions. To the extent that
       the cause of action arises from judicial, legislative, executive or
       administrative policy-making acts or omissions, both the State and the
       official involved are absolutely immune pursuant to Syl. Pt. 7 of Parkulo v.
       W.Va. Bd. of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).

Syl. Pt. 10, W.Va. Reg.’l Jail & Corr. Facility Auth. v. A.B., 234 W.Va. 492, 766 S.E.2d
751 (2014). In her complaint, P.R. asserted that the defendants’ negligent acts or omissions
were the failure to provide a reasonably safe facility; the failure to properly staff, hire,
supervise, train and retain correctional officers; and the failure to adequately supervise the
inmates. In response to the defendants’ motion for summary judgment, P.R. made the more
specific allegation that Sergeant Dilley, a correctional officer, was negligent for failing to
follow Policy Directive 332.02. She contends that pursuant to this policy, Sergeant Dilley
should have informed the shift commander and filed an incident report when P.R.
complained that male inmates had made sexual comments to her.9 In A.B., this Court
recognized that the general duties of a correctional officer fall within the category of
“discretionary” duties of the government. Id. at 509, 766 S.E.2d at 768 (“general functions

       9
         P.R. is apparently asserting that the DOC is liable under a theory of respondeat
superior for an omission by Sergeant Dilley. She does not explain how the warden and
associate warden would be vicariously liable for this purported omission.

                                              7
as a correctional officer, like most law enforcement officers, are broadly characterized as
discretionary, requiring the use of his discretionary judgments and decisions.”). Indeed, the
parties herein do not seem to dispute that P.R.’s negligence claim falls within the category
of discretionary acts.

       West Virginia law accords qualified immunity protection to the discretionary
functions of a government official or agency that are merely negligent.

              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., 10 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) (footnote added); accord
Crouch v. Gillispie, 240 W.Va. 229, 234, 809 S.E.2d 699, 704, (2018) (“A public officer
is entitled to qualified immunity for discretionary acts, even if committed negligently.”)
(Internal citation and quotation marks omitted). The scope of qualified immunity is broad.
If the action or omission is within the public officer’s authority, the officer is immune from
private suit for negligence:

              If a public officer is either authorized or required, in the exercise of
       his judgment and discretion, to make a decision and to perform acts in the
       making of that decision, and the decision and acts are within the scope of his
       duty, authority, and jurisdiction, he is not liable for negligence or other error
       in the making of that decision, at the suit of a private individual claiming to
       have been damaged thereby.

Clark, 195 W.Va. at 273, 465 S.E.2d at 375, syl. pt. 4. As this Court has observed,
“[q]ualified immunity is broad and protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” W.Va. State Police v. Hughes, 238 W.Va. 406, 411, 796
S.E.2d 193, 198 (2017) (quoting Hutchison, 198 W.Va. at 148, 479 S.E.2d at 658, and
Malley v. Briggs, 475 U.S. 335, 341 (1986)). The “sweep of these immunities is necessarily
broad” because “public servants exercising their official discretion in the discharge of their
duties cannot live in constant fear of lawsuits, with the concomitant costs to the public
servant and society.” Hutchison, 198 W.Va. at 148, 479 S.E.2d at 658 (citations omitted).


       10
        The Governmental Tort Claims and Insurance Reform Act is not applicable to the
defendants in this case, who are a state agency and state officials.

                                              8
       To defeat qualified immunity for discretionary functions, a plaintiff must make the
following showing:

              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.

A.B., 234 W.Va. at 497, 766 S.E.2d at 756, syl. pt. 11.

       The parties disagree about whether Policy Directive 332.02 constitutes a “clearly
established law” for purposes of defeating qualified immunity. While both sides set forth
good arguments on this question, its resolution is unnecessary for the disposition of this
appeal. Accordingly, we save the question of whether Policy Directive 332.02 is a “clearly
established law” for another day.

       Even assuming arguendo that Policy Directive 332.02 is a “clearly established law,”
the plaintiff must also show that it is a law “of which a reasonable person would have
known.” See A.B., 234 W.Va. at 497, 766 S.E.2d at 756, syl. pt. 11. This “knowing”
element encompasses not only the knowledge of the existence of the law, but also the
knowledge that the law would apply to the particular scenario presented.

               “To prove that a clearly established right has been infringed upon, a
       plaintiff must do more than allege that an abstract right has been violated.
       Instead, the plaintiff must make a ‘particularized showing’ that a ‘reasonable
       official would understand that what he is doing violated that right’ or that ‘in
       the light of preexisting law the unlawfulness’ of the action was ‘apparent.’
       Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d
       523 (1987).” Hutchison v. City of Huntington, 198 W.Va. 139, 149 n.11, 479
       S.E.2d 649, 659 n.11 (1996).

A.B., 234 W.Va. at 517, 766 S.E.2d at 776. In this case, accepting P.R.’s factual allegations
as true, we cannot conclude that the information P.R. says she presented to Sergeant Dilley




                                              9
one week prior to the alleged assault should have put Dilley on notice that Policy Directive
332.02 was applicable at that time.11

       According to P.R.’s deposition testimony and subsequent affidavit, ten male inmates
in the ACC recreation yard made comments about sex acts that they would like to perform
on her if they “wasn’t [sic] in prison.” In her deposition, P.R. admitted that what the men
said “wasn’t really a threat.” Even with the benefit of hindsight when preparing her
affidavit, P.R. did not assert that she told Sergeant Dilley that she feared sexual assault,
was threatened with sexual assault, or had been sexually assaulted. Rather, she averred in
her affidavit that she “informed Sgt. Dilley of the sexual comments mentioned above[.]”

       Policy Directive 332.02 specifies actions that DOC staff must take when an inmate
reports “a sexual assault/abuse or possible sexual assault/abuse[.]” The conjoined term
“sexual assault/abuse” is not defined in the policy. However, “sexual assault” is expressly
defined as “sexual contact” or “intrusion.”12 The policy includes directives for preserving
any physical evidence of sexual assault, such as advising the alleged victim not to shower
or brush his or her teeth, and for making arrangements for the alleged victim to be examined
by medical services.13 The policy also provides directions for collecting any physical
evidence of sexual assault and pursuing an investigation, including notifying the State
Police.14 After reading the policy, it is simply not obvious that it would apply to the vulgar
commentary P.R. has described.

       P.R. argues that Policy Directive 332.02 applies here because of the policy’s use of
the word “possible” in the phrase “[a]ny employee that receives a report of a sexual
assault/abuse or possible sexual assault/abuse”15 shall immediately notify the shift
commander and complete an incident report. The policy does not explain what is meant by
the use of the word “possible.” However, the DOC contends that “possible” refers to sex

       11
         We note that a DOC employee did complete an incident report on September 28,
2011, the same day P.R. reported she had been sexually assaulted.
       12
            Section III of the policy defines “sexual assault” to mean

       any sexual contact between the sex organ of one (1) person and the sex organ,
       mouth, or anus of another person, or any intrusion of any part of the body of
       one (1) person, or of any object into the sex organ, mouth, or anus of another
       person, by the use of force or threat of force.
       13
            See DOC Policy Dir. 332.02 (V)(A)(3), (V)(A)(4).
       14
            See DOC Policy Dir. 332.02 (V)(B), (V)(C).
       15
            See supra, note 5.

                                               10
acts that an inmate reports, but which may or may not be true. The DOC argues that this
interpretation is consistent with an in pari materia reading of other provisions in the policy
that address collecting physical evidence and pursuing an investigation. The DOC argues
that there are no procedures specified in Policy Directive 332.02 for the investigation or
handling of threatened future sexual assault/abuse. Having reviewed the policy language
as a whole, we conclude that it is ambiguous as to whether the word “possible” means that
the policy would apply to the prison yard comments P.R. has described and thereby place
an employee on notice that the policy applies.

        In her deposition and affidavit, P.R. describes sexual comments made to her that
are, without question, abhorrent. Nonetheless, even accepting the facts she alleges as true,
it is far from clear that a reasonable DOC employee would have understood that Policy
Directive 332.02 was triggered when P.R. reported these comments to Sergeant Dilley. At
best, when reading the policy as a whole, the use of the word “possible” creates an
ambiguity. As such, an official in Sergeant Dilley’s position could not be expected to
understand that failing to implement Policy Directive 332.02 in that situation would be
violative of P.R.’s rights. See A.B., 234 W.Va. at 517, 766 S.E.2d at 776. Put another way,
under these circumstances, the “unlawfulness” of failing to follow the policy directive
would not be “apparent.” Id.

        When Policy Directive 332.02 is removed from the analysis, P.R. is left with her
general claims against the defendants of negligent staffing and negligent supervision of
staff and inmates on the day of the alleged assault. However, her general negligence claims
do not defeat the broad scope of qualified immunity. Our law is clear that the doctrine of
qualified immunity bars claims of mere negligence. See e.g., Clark, 195 W.Va. at 274, 465
S.E.2d at 376, syl. pt. 6. Simply making “the skeletal assertion that if . . . [a correctional
officer] were properly trained and supervised, the rape would not have occurred” is nothing
more than an “illusory and languid contention . . . [not] sufficient to overcome the State’s
immunity[.]” A.B., 234 W.Va. at 516 n.33, 766 S.E.2d at 775, n.33. This footnote in A.B.
cites West Virginia Department of Health and Human Resources v. Payne, 231 W.Va. 563,
574, 746 S.E.2d 554, 565 (2013), where this Court rejected an argument that qualified
immunity is lost simply because state agency defendants did not do their jobs properly.
Accordingly, we conclude that the DOC, Warden Patterson, and Associate Warden Walton
have qualified immunity to P.R.’s negligence claims. It was error for the circuit court to
have denied their motion for summary judgment on this basis.16


       16
         Additionally, P.R. makes a very limited alternative argument in her response brief
that qualified immunity is defeated because the DOC, Warden Patterson, and Associate
Warden Walton committed acts or omissions against her that were “fraudulent, malicious
or oppressive[.]” See A.B., 234 W.Va. at 497, 766 S.E.2d at 756, syl. pt. 11. Citing to
dictionary definitions of these terms, she argues that these defendants acted fraudulently,
maliciously, or oppressively by failing to “properly staff ACC and [failing to] adequately
                                             11
        To be clear, this Court does not condone sexual assault or the vulgar comments
described by P.R. However, we are duty-bound to follow the law of qualified immunity.
For the foregoing reasons, we reverse the circuit court’s ruling regarding the application of
qualified immunity to P.R.’s negligence claim. This case is remanded to the circuit court
for the entry of an order granting summary judgment for the defendants.

                                                                     Reversed and Remanded

ISSUED:

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

DISSENTING AND WRITING SEPARATELY:
Justice Margaret L. Workman

WORKMAN, J., dissenting:

              I dissent from the majority’s opinion in this case because the decision to grant
immunity to the petitioners is at best premature, and at worst an unwarranted and unwise
expansion of the law set forth in this Court’s immunity decisions. In an oft-repeated
formulation, the United States Supreme Court wrote that the law seeks to balance “two
important interests – the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,
231 (2009). In my view, this Court has lost its balance; in our laser focus on shielding
public officials, we are minimizing the harm done to victims,1 especially those victims

investigate or even address [P.R.’s] cry for help prior to the gang rape.” However, because
it is undisputed that Sergeant Dilley never reported P.R.’s complaint about the prison yard
sexual comments (assuming arguendo that such complaint was in fact made to Dilley), it
is unclear how the DOC and the two wardens would have known of the alleged “cry for
help” or the need to investigate and address the same. As such, we find no merit to this
argument.
       1
         In this regard, the majority dutifully recites the conclusion reached by the DOC’s
internal investigation: “due to conflicting statements of the victim and the accused, and no
known independent witnesses or physical evidence, the accusation . . . is unsubstantiated.”
I believe that it is a disputed issue of material fact as to whether this investigation may have
                                              12
most powerless to protect themselves – prison inmates who are the victims of sexual
assault.

             I begin by referencing two important points with respect to our standard of
review, both of which the majority honors in the breach rather than in the observance. First,
questions of statutory or qualified immunity are properly determined on summary
disposition “unless there is a bona fide dispute as to the foundational or historical facts that
underlie the immunity determination.” Syl. Pt. 1, in part, Hutchison v. City of Huntington, 198
W.Va. 139, 479 S.E.2d 649 (1996); Syl.. Pt. 3, in part, W. Va. Reg’l Jail Corr. Facility v. A.B.,
.234 W. Va. 492, 766 S.E.2d 751, 755 (2014). Second, because our review of the grant or
denial of summary judgment is plenary, “this Court, like the circuit court, must view the
entire record in the light most hospitable to the party opposing summary judgment,
indulging all reasonable inferences in that party’s favor.” Asaad v. Res-Care, Inc., 197 W.
Va. 684, 687, 478 S.E.2d 357, 360 (1996). In its analysis of whether the petitioners are
entitled to qualified immunity, I believe that the majority has completely ignored these
limiting principles of appellate review and engaged in a rush to judgment.

              In its opinion, the majority has done a masterful job in threading the
proverbial needle by avoiding the substantive issue argued by the parties – whether the
DOC’s Policy Directive 332.02 (“Policy Directive”) constitutes a “clearly established law”
for purposes of defeating qualified immunity – by holding that even assuming arguendo
the Policy Directive is clearly established, nonetheless it isn’t clear.2 Therefore, according
to the majority, the Court is “duty bound” to grant qualified immunity to the petitioners
because “an official in Sergeant Dilley’s position could not be expected to understand that
failing to implement Policy Directive 332.02 in that situation would be violative of P.R.’s
rights.” Under the facts and circumstances of this case, I cannot agree with this crabbed
interpretation of what a correctional officer in Sergeant Dilley’s position could be expected
to understand.

              The Anthony Correctional Center houses both male and female inmates,
young offenders between the ages of eighteen and twenty-five years, a circumstance which
in and of itself presents particular challenges for officials in charge of the institution.
According to the respondent, the supervision of large numbers of inmates in the recreation


been pro forma; in light of the respondent’s accusation that correctional officers failed to
protect her, the Division of Corrections had its own institutional interests to protect as well
as the respondent’s interests.
       2
         One may reasonably question why the DOC needs a written Policy Directive to
establish that allegations of sexual assault, and/or the threat of sexual assault, should be
investigated, and that steps should be taken to protect inmates from all forms of violence,
including sexual assault.

                                               13
yard is minimal at best, which increases the opportunity for exactly the sort of incident
which allegedly took place in this case: a brutal gang rape in the women’s outdoor
bathroom facility. Yet when the respondent reported to Sergeant Dilley that a large group
of male inmates had made disgusting, vulgar and intimidating sexual threats to her, he
allegedly asked no questions and took no action whatsoever. In the single Syllabus Point
in Bennett v. Coffman, 178 W. Va. 500, 361 S.E.2d 465 (1987), this Court held in relevant
part that “[g]overnment officials performing discretionary functions are shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
(Emphasis supplied.)

              I simply cannot accept the majority’s blithe conclusion that a reasonable
officer in Sergeant Dilley’s position would fail to understand that the respondent was in
danger, and I further do not accept that whether or not to take some action to protect her -
any action at all - was a discretionary call on the officer’s part. If the protection of inmates
from violence and sexual assault is discretionary, then a sentence of imprisonment in this
State should carry with it the words appearing at the threshold of Hell: Abandon hope, all
ye who enter here.3

              As noted earlier, because our review of the grant or denial of summary
judgment is plenary, “this Court, like the circuit court, must view the entire record in the
light most hospitable to the party opposing summary judgment, indulging all reasonable
inferences in that party’s favor.” Asaad, 197 W. Va. at 687, 478 S.E.2d at 360. The
majority has utterly failed to follow this longstanding rule of appellate review in the instant
case. The respondent alleges that she was brutally gang-raped, vaginally and anally, by
three individuals who had earlier been part of a larger group that made crude and vulgar
sexual comments to her, comments which a jury could easily conclude were threats of
imminent sexual violence. Further, the respondent alleges that she reported these threats
to Sergeant Dilley, who did absolutely nothing. Further, the respondent alleges that
“[s]ince the opening of ACC, there has existed a continuing practice and pattern of sexual
harassment, sexual abuse, sexual assault and rape visited upon inmates.” At this stage of
the proceedings, we are obliged to view these allegations as true and to accept the inference
the respondent would have us draw therefrom: that her rape was the direct and proximate
result both of the petitioners’ longstanding failure to protect inmates, as well as Sergeant
Dilley’s unreasonable failure to appreciate the danger to the respondent and to report the
issue “up the ladder” or at least do something to protect her after she reported being
threatened. The circuit court denied summary judgment on the ground that there were
disputed issues of material fact with respect to the respondent’s claims and the petitioners’
defenses, and the court was clearly correct in this assessment.


       3
           Dante Alighieri, Divine Comedy, Part I (Inferno), Canto III (1320).

                                              14
               Rather than confront these allegations in a straightforward manner, and
through a prism of common sense, the majority spends its time engaging in a discussion of
whether “possible sexual assault/abuse” could be interpreted by a reasonable corrections
officer to encompass the threat of sexual assault, where a young female inmate reports
disgusting and threatening sexual comments made to her by a large gang of male prisoners.
Although I suppose that “possible sexual assault/abuse” could have different meanings in
different contexts, the petitioners’ argument that it means “rape-but-we-don’t-really-
believe-it” is frankly absurd. It is particularly absurd in the instant case, where the
petitioners’ initial institutional position, upon receiving the respondent’s report of a vaginal
and anal gang rape, which occurred on a concrete bathroom floor, was that this could very
well have been a consensual encounter. Circuit judges instruct juries every day that they
should not leave their common sense outside the door when they enter the jury room, and
I suggest that the petitioners’ strained arguments would not pass the common sense test in
any courtroom in this State.

              In this Court’s qualified immunity jurisprudence, one precedent frequently
cited is Regional Jail and Correctional Facility Authority v A.B., 234 W. Va. 492, 766
S.E.2d 751 (2014), the first of several opinions in which we held that jail or prison officials
were immune from liability for inmate rape, even where the rapist was a jail or prison
official. See R.Q. v. W. Va. Div. of Corr., No. 13-1223, 2015 WL 17463 (W. Va. Apr. 10,
2015) (memorandum decision); E.B. v. W. Va. Reg. Jail, No. 16-0092, 2017 WL 383779
(W. Va. Jan. 27, 2017) (memorandum decision). As the author of the dissenting opinion
cogently observed in A.B., “‘[w]isdom too often never comes, and so one ought not to reject
it merely because it comes late.’” 234 W. Va. at 519, 766 S.E.2d at 778 (Davis, J.,
dissenting) (internal citations omitted). The wisdom to which then-Justice Davis referred
was the wisdom to understand that the real issue in that case was not whether the
correctional officer in question was acting outside the scope of his employment when he
raped a jail inmate on multiple occasions, but rather “what the Regional Jail did to assure
the reasonable safety of the plaintiff from being raped.” Id. at 520, 766 S.E.2d at 779.

              As the author of the majority opinion in A.B., I believe that the decision in
that case was and is consistent with the law as it has been developed by this Court over the
past decades. However, I have come, albeit reluctantly and late, to the realization that then-
Justice Davis was right in A.B. when she pointed out “the reality of the injustice [the Court]
has unleashed[,]” id., in that we have focused so intently on the rights of governmental
agencies, officers and employees to be shielded from liability for their tortious acts that we
have lost sight of the rights of their victims. At a minimum, in the cases involving jail or
prison inmates, those rights include the right, to the extent reasonably possible, “to be free
‘from invasion of [their] personal security though sexual abuse.’” Id. at 521, 766 S.E.2d
at 780 (citing Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3rd Cir. 1989)).
No crime, and no circumstance, justifies our indifference to institutional rape. Cf.
De’Lonta v. Clarke, No. 7:11-cv-00483, 2013 WL 209489, at *3 (W.D. Va., Jan. 14, 2013)
(“Being violently assaulted in prison is simply not part of the penalty that criminal

                                              15
offenders pay for their offenses against society.”) (citing Farmer v. Brennan, 511 U.S. 825,
834 (1994)). Inasmuch as every inmate in West Virginia is in an institution pursuant to a
court order, I suggest that the Judicial Branch has a responsibility, through rigorous review
of the cases before us and scrupulous application of the law, to ensure that the Executive
Branch is in turn fulfilling its responsibility to protect the individuals in its charge. We
must be willing to hold officials accountable in a case where the facts demand it, even
where the individual bringing the lawsuit is something less than an ideal plaintiff.

              Other jurisdictions have held that there is a duty on the part of prison officials
to protect inmates from inmate-on-inmate violence; it is not a discretionary function. E.g.,
Sanchez v. State of N.Y.,784 N.E.2d 675 (2002) (“having assumed physical custody of
inmates who cannot protect and defend themselves in the same way those at liberty can,
the State owes a duty of care to safeguard inmates even from attacks by fellow inmates.”);
Mattox v. State Dep’t of Corr., 323 P.3d 23, 26 (Alaska 2014) (“The Department of
Corrections owes a duty to inmates to exercise reasonable care for the protection of their
lives and health”). Although this Court has expressed agreement with what seems an
unremarkable concept,4 the expanding concept of immunity for correctional officials has
so far overtaken their duty to protect inmates that the duty has largely become
unenforceable. I believe that we need to make a diligent effort to find the balance between
immunity and duty enunciated in Pearson, and this case would be a good place to start:
whether or not Sergeant Dilley’s failure to act was reasonable is not beyond dispute and
does not hinge on a single word in Policy Directive 332.02, as the majority has held. See
Pearson, 555 U.S. at 231.

              In De’Lonta, Senior District Judge James C. Turk wrote that “‘the shield that
qualified immunity provides is limited to those officials who are either unaware of the risk
or who take reasonable measures to counter it,’” 2013 WL 209489 at *5 (citing Schwenk
v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000)). Further, “the Eighth Amendment right
of prisoners to be free from sexual abuse was unquestionably clearly established prior to
the time of this alleged assault, and no reasonable prison guard could possibly have
believed otherwise.” Id. (citing Turner v. Huibregise, 421 F.Supp.2d 1149, 1152-53 (W.D.
Wis. 2006)). Although De’Lonta involved a sexual assault on a prisoner by a corrections
officer, its rationale is directly on point where, as here, only by a feat of linguistic
legerdemain could it be said that Sergeant Dilley was not aware of the risk to the respondent
posed by sexually aggressive male prisoners telling her that they “wanted to fuck that phat




       4
        See Syl. Pt. 2, in part, Hackl v. Dale, 171 W. Va. 415, 299 S.E.2d 26 (1982) (“A
prisoner has a right, secured by the Eighth and Fourteenth Amendments, to be reasonably
protected from constant threat of violence and sexual assault by his fellow inmates[.]”).

                                              16
ass.”5 Further, only by narrowing the facts of this tragic case down to the interpretation of
one single word, “possible,” could it be said that under the facts and circumstances of this
case, Sergeant Dilley could reasonably have concluded that he didn’t need to say or do
anything to protect the respondent.

             Over the years, several Justices of the United States Supreme Court have
expressed reservations with respect to the qualified immunity doctrine, albeit on differing
grounds. As described by Professor Joanna C. Schwartz, The Case Against Qualified
Immunity, 93 Notre Dame L. Rev. 1797, 1798-99 (2018),

               [b]ut there are also cracks in qualified immunity's armor. Most
              recently, in his concurrence in Ziglar v. Abbasi, [137 S. Ct.
              1843 (2017)] Justice Thomas criticized the doctrine for bearing
              little resemblance to the common law at the time the Civil
              Rights Act of 1871 became law, and for being defined by
              “precisely the sort of ‘freewheeling policy choice[s]’ that we
              have previously disclaimed the power to make.” Indeed,
              Justice Thomas recommended that “[i]n an appropriate case,
              we should reconsider our qualified immunity jurisprudence.”
              Much attention has been paid to Justice Thomas's call to
              reconsider qualified immunity doctrine in Ziglar. But Justices
              have been raising questions about qualified immunity for
              decades. In 1997, Justice Breyer suggested that defendants
              should not be protected by qualified immunity if they are
              certain to be shielded from financial liability by their employer.
              In 1992, Justice Kennedy indicated that qualified immunity
              doctrine might be unnecessary to shield government
              defendants from trial given the Court's summary judgment
              jurisprudence. In 2015, and again in 2018, Justice Sotomayor
              expressed concern that the Court's qualified immunity
              decisions contribute to a culture of police violence.

(Internal footnotes omitted.) Legal scholars and commentators have likewise begun to
question the efficacy of the doctrine as well as its fundamental fairness. See, e.g., Note,
Rebalancing Harlow: A New Approach to Qualified Immunity in the Fourth Amendment,
68 Chase W. Res. L. R. 495 (2017); William Baude, Is Qualified Immunity Unlawful?, 106
Calif. L. Rev. 45 (2018); Katherine Mims Crocker, Qualified Immunity and Constitutional
Structure, 117 Mich. L. Rev. 1405 (2019). Common problems and issues raised include:


       5
         This and other distinctly threatening comments were set forth in the respondent’s
affidavit submitted in response to the petitioners’ motion for summary judgment.

                                             17
       Courts straining to find precedent that is squarely on point factually, in order to
establish whether or not a right is clearly established, has resulted in the “conver[sion of]
qualified immunity to near absolute immunity,” Rebalancing Harlow: A New Approach to
Qualified Immunity in the Fourth Amendment, 68 Chase W. Res. L. R. at 519;

        Asking a court to decide what a reasonable official would have believed to be legal
requires the court to do inappropriate fact-finding and to personalize the inquiry by putting
itself in the shoes of the official, id. at 520;

       Courts “skip straight to the clearly established prong” of the qualified immunity
analysis, with the result that analysis of the merits of the plaintiff’s claim fall by the
wayside, id. at 521-22; and

       The focus on whether an official’s conduct is objectively reasonable will, in many
cases, “trump[] intentional wrongdoing,” id. at 523.

              The opinion in the instant case illustrates all of these concerns. By limiting
its discussion of clearly established rights to Policy Directive 332.02, and thereafter to the
single phrase “possible sexual assault/abuse,” the majority has completely sidestepped any
discussion of whether the respondent’s right to physical safety, and bodily integrity, was a
clearly established right of which any reasonable correctional officer should have been
aware. By putting itself into Sergeant Dilley’s shoes in order to decide what he would
reasonably have understood to be his duties under the Policy Directive, the majority then
engaged in unwarranted fact-finding and usurped the province of a jury. Without question,
the merits of this dispute have fallen by the wayside in the majority’s rush to judgment;
what led up to the respondent’s rape, the details of this horrific experience, and what
happened to the respondent afterwards – we can only wonder, because the only thing
important to the majority’s decision was what was going on in Sergeant Dilley’s head.
Finally, whether Sergeant Dilley was simply negligent, or whether he was callously
indifferent to the respondent’s safety, will never be known, because the majority utilized
only an objective standard of reasonableness.

               In this dissent, it is not my intent to write a treatise on the doctrine of qualified
immunity or to castigate the majority, although I am firmly convinced that this case has
been wrongly decided. Instead, it is my intent to spark a conversation about the doctrine
of qualified immunity,6 whose development over the years has led us to what we are doing

       6
        During my thirty years of judicial service, I have tried to faithfully follow the law
even when I personally do not agree with it. This does not mean, however, that the law
must forever remain static. In a proper case, it is the duty and function of an appellate court
to determine whether the law should evolve – usually in baby steps – in order to adapt to
changing circumstances and new challenges.

                                                18
today: slamming the door of the courthouse in the face of a powerless individual who was
sexually assaulted, on the ground that the people whose duty it is to protect her could not
reasonably have known they should do something in a situation replete with red flags. Our
immunity jurisprudence in the area of inmate sexual assault has come to this: if a
correctional officer rapes an inmate, the Division of Corrections is immune because raping
inmates is not within the scope of the officer’s duties; and if an inmate rapes another
inmate, the Division of Corrections is immune because correctional officers cannot
reasonably be expected to understand that they have a duty to protect inmates from violence
and sexual assault. The bottom line is that the law as it currently stands does not protect
inmates from sexual assault perpetrated by anyone – guard or inmate - in a penal institution.

              I am not under any illusions that this dissent will change any of my
colleagues’ minds in the instant case; nonetheless, it is the duty of an appellate court judge
to articulate his or her separate reasoning, either in a concurrence or a dissent, when such
separate reasoning may have some effect, someday, in the development of the law. In this
regard, “[a]ppellate courts have two primary purposes, and the standard of review to be
applied by appellate courts should relate to those two purposes. Appellate courts should
serve to develop the law in a particular area as guidance for future cases and to rectify
egregious errors in particular cases.” Christopher M. Pietruszkiewicz, Economic
Substance and the Standard of Review, 60 Ala. L.Rev. 339, 360 (2009).

             In summary, the circuit court was correct in its determination that disputed
issues of material fact exist in this case, and that summary judgment for the petitioners on
immunity grounds inappropriate, at least at this time. The respondent should have been
permitted to proceed with her case at trial, and to hold the petitioners accountable if the
jury found the allegations in the complaint to be true.

              Accordingly, I dissent.




                                             19
