                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Hiram Lewis,
Third-Party Plaintiff Below, Petitioner                                             FILED
                                                                                  November 12, 2013
                                                                               RORY L. PERRY II, CLERK
vs) No. 13-0464 (Clay County 12-C-29)                                        SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Jim Samples, Prosecutor of Clay County,
Third-Party Defendant Below, Respondent

                               MEMORANDUM DECISION

        Petitioner Hiram Lewis, an attorney proceeding in his own interest, appeals the order of the
Circuit Court of Clay County, entered April 4, 2013, that dismissed with prejudice his third-party
complaint against the Prosecuting Attorney of Clay County. Respondent Jim Samples, Prosecuting
Attorney of Clay County, by counsel Stuart A. McMillian and Jared T. Moore, filed a response.

       The Court has considered the parties’ briefs and the record on appeal.1 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 Rules of Appellate
Procedure.

        Petitioner shot Steven Bogart in the leg on June 13, 2012, in what petitioner alleged was
self defense. However, respondent brought criminal charges against petitioner for the shooting.
Petitioner was subsequently found not guilty.

        Mr. Bogart also filed a civil action against petitioner for damages he allegedly suffered as a
result of the June 13, 2012 incident. During the course of that action, petitioner filed a third-party
complaint against respondent.2 Respondent moved to dismiss. Following a hearing on February
21, 2013, the circuit court dismissed with prejudice petitioner’s third-party complaint against
respondent based on the doctrine of absolute prosecutorial immunity. The circuit court explained

       1
         By an order entered May 30, 2013, this Court ordered a transcript of the February 21,
2013 hearing on respondent’s motion to dismiss be prepared and then delivered to petitioner.
However, on August 5, 2013, petitioner wrote the Court that he did not intend to file an appendix.
Therefore, the Court does not address the February 21, 2013 hearing transcript herein.
       2
         At the time of his third-party complaint, the criminal charges against petitioner were still
pending. Petitioner also filed his third-party complaint against the West Virginia State Police and
Randy Holcomb, former Sheriff of Clay County. However, this appeal is concerned only with
respondent’s dismissal.
                                                  1
that petitioner’s allegations against the Prosecuting Attorney “were intricately associated with the
judicial process.” Petitioner now appeals the circuit court’s April 4, 2013, dismissal with prejudice
of respondent.

       “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, 461
S.E.2d 516 (1995).

         On appeal, petitioner argues that in Jarvis v. West Virginia State Police, 227 W.Va. 472,
711 S.E.2d 542 (2010), this Court ruled that a claim could be pursued against a state actor if an
indictment was procured by fraud, perjury, or falsified evidence. Respondent counters that Jarvis
addressed police officers’ qualified immunity, and not the immunity of prosecutors who are
absolutely immune from suit. This Court finds that respondent’s argument is the more persuasive
because the Court in Jarvis found that a similar cause of action was better characterized as an
action for “retaliatory inducement to prosecute” by a non-prosecutor such as a law enforcement
official who influences the prosecutorial decision. The Court stated that, strictly speaking, there
would never be a cause of action for “retaliatory prosecution” because “[an] action for retaliatory
prosecution will not be brought against the prosecutor, who is absolutely immune from liability for
the decision to prosecute.” 227 W.Va. at 478, 711 S.E.2d at 548 (quoting Hartman v. Moore, 547
U.S. 250, 261-62, 126 S.Ct. 1695, 1704, 164 L.Ed.2d 441, 454 (2006)). (Footnote omitted.)
“[A]bsolute prosecutorial immunity cannot be defeated by showing that the prosecutor acted
wrongfully or even maliciously[.]” 227 W.Va. at 478 n. 5, 711 S.E.2d at 548 n. 5 (quoting Mooney
v. Frazier, 225 W.Va. 358, 370 n. 12, 693 S.E.2d 333, 345 n. 12 (2010)). Therefore, this Court
finds that petitioner’s third-party complaint against respondent failed as a matter of law.

        Because of absolute prosecutorial immunity, any claim petitioner would have against
respondent in connection with the prosecutorial process would fail as a matter of law.
Accordingly, this Court further finds that petitioner’s alternative argument, that the dismissal of
his third-party complaint should be designated “without prejudice,” is totally devoid of merit. This
Court concludes that the circuit court did not err in dismissing the complaint with prejudice.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: November 12, 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
                                                 2
