                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Kenneth Edward Chance, Jr.,                                                         FILED
Petitioner Below, Petitioner                                                    September 11, 2015
                                                                               RORY L. PERRY II, CLERK
vs) No. 15-0297 (Kanawha County 13-P-275)                                    SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

David Tincher, Director, West Virginia
Division of Purchasing, and Jim Rubenstein,
Commissioner, West Virginia Division of
Corrections, Respondents Below, Respondents


                              MEMORANDUM DECISION

        Petitioner Kenneth Edward Chance, Jr., pro se, appeals the order of the Circuit Court of
Kanawha County, entered February 9, 2015, dismissing his petition to compel respondents to
comply with his requests made pursuant to the West Virginia Freedom of Information Act
(“FOIA”), West Virginia Code §§ 29B-1-1 to -7. Respondents David Tincher, Director, West
Virginia Division of Purchasing, and Jim Rubenstein, Commissioner, West Virginia Division of
Corrections, by counsel Greg S. Foster and John Boothroyd, filed a summary response, and
petitioner filed a reply.

        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 determines that (1) Respondent Rubenstein should be dismissed from the
appeal; and (2) there is no substantial question of law and no prejudicial error with regard to the
circuit court’s dismissal of the petition with regard to Respondent Tincher. For these reasons, a
memorandum decision dismissing petitioner’s appeal, in part, and affirming the February 9, 2015,
order, in part, is appropriate under Rule 21 of the Rules of Appellate Procedure.

       In Chance v. Morrisey, No. 13-0593, 2014 WL 998421 (W.Va. Supreme Court, March 14,
2014) (memorandum decision), petitioner filed a petition for a writ of mandamus in the Circuit
Court of Kanawha County to compel various state officials to enforce contractual provisions with
independent contractors to ensure adequate medical care and food service at Mount Olive
Correctional Complex (“Mount Olive”).1 Id. at *1. The circuit court denied that petition on May

       1
          Petitioner was incarcerated at Mount Olive from February of 1995 to May of 2013.
Petitioner is currently incarcerated at the Northern Correctional Facility.


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20, 2013, and this Court affirmed that denial. Id. at *2-3.

        In connection with his petition in Chance, petitioner submitted FOIA requests to
Respondent Tincher on February 25, 2013, asking whether state officials had filed any complaints
against the medical care and food service providers at Mount Olive. Respondent Tincher did not
respond to those requests.

         Separately, petitioner submitted FOIA requests to Respondent Rubenstein on April 8,
2013, and April 10, 2013, asking that he be allowed to inspect and/or copy Division of Corrections
(“DOC”) policy directives and Mount Olive operational procedures that the Commissioner
restricted from inmate viewing. Respondent Rubenstein responded that petitioner (or a
representative) could inspect a portion of the restricted policy directives and operational
procedures either at the Commissioner’s office in Charleston, West Virginia, or in the office of
Mount Olive’s Warden.

        Thereafter, on May 20, 2013—the same day the circuit court denied his petition in
Chance—petitioner filed the petition in the instant case requesting that the circuit court compel
respondents to comply with his FOIA requests and impose penalties for their non-compliance.2
On February 9, 2015, the circuit court dismissed the petition in this case finding that it was
frivolous. Petitioner now appeals the circuit court’s February 9, 2015, dismissal of his petition. We
review a circuit court’s dismissal of an action de novo. See 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).

        On appeal, petitioner concedes that Respondent Rubenstein should be dismissed from the
appeal because petitioner no longer seeks the policy directives and operational procedures that the
Commissioner has restricted from inmate viewing. We note that prison administrators have to
“anticipate security problems and to adopt innovative solutions to the intractable problems of
prison administration” and, therefore, the considered judgment of such administrators is entitled to
deference. O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); see also Nobles v. Duncil, 202
W.Va. 523, 534, 505 S.E.2d 442, 453 (1998) (stating that deference is given to prison
administrators’ judgment). Therefore, we accept petitioner’s concession3 and dismiss Respondent
Rubenstein from this appeal.
        With regard to the FOIA requests made to Respondent Tincher, petitioner further concedes
that he sought information “for use in the mandamus [action]” in Chance. Accordingly,
respondents argue that petitioner could have sought the information asked for in his FOIA requests
in the proceeding in Chance and, therefore, the doctrine of res judicata bars petitioner’s instant

       2
         FOIA provides for a misdemeanor charge for non-compliance leading to possible fines
and incarceration if there is a conviction, as well as for the awarding of court costs. See W.Va.
Code §§ 29B-1-6 (penalties for non-compliance) and 29B-1-7 (attorney’s fees and court costs).
       3
         See Syl. Pt. 8, State v. Julius, 185 W.Va. 422, 424, 408 S.E.2d 1, 3 (1991) (holding that
this Court is not obligated to accept party’s concession).


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petition. For res judicata to preclude a second proceeding, three elements must coexist: (1) a final
adjudication on the merits in the first proceeding; (2) the same parties, or persons in privity with
those same parties, as the first proceeding; and (3) a cause of action in the second proceeding that
is identical to the cause of action determined in the first proceeding—or such that it could have
been resolved, had it been presented, in the first proceeding. See Syl. Pt. 1, Antolini v. West
Virginia Division of Natural Resources, 220 W.Va. 255, 256, 647 S.E.2d 535, 536 (2007) (quoting
Syl. Pt. 4, Blake v. Charleston Area Medical Center, Inc., 201 W.Va. 469, 472, 498 S.E.2d 41, 44
(1997)). It is undisputed that this’s Court’s affirmation of the denial of mandamus relief in Chance
constituted a final adjudication on the merits in the first proceeding.4

        The parties dispute whether the last two elements for the doctrine of res judicata to apply
are satisfied. We agree with respondents and find that those elements are satisfied in this case.
First, while Respondent Tincher was not a named respondent in Chance, other state officials were
so named.5 Petitioner alleged that those officials had a duty to ensure that the State’s prison food
and medical service contractors were complying with their contracts. At the same time, in his
FOIA requests, petitioner asserted that Respondent Tincher—the State’s Director of
Purchasing—possessed information relevant to show the other state officials’ efforts to ensure
compliance, or the lack thereof. Second, given that petitioner’s claim in Chance was that the State
was failing in its duty to ensure contractual compliance, petitioner could have also included the
claim that the State’s purchasing director possessed information relevant to show lack of
compliance enforcement. Petitioner cannot contend that he did not believe that Respondent
Tincher had such information because petitioner made his FOIA requests at the time that his
petition in Chance was still pending in the circuit court and because, as noted supra, petitioner
concedes that he thought that he could obtain information pertinent to his claim in Chance. Thus,
we find that (1) petitioner sued officials of the State of West Virginia who were in privity with each
other; and (2) petitioner’s claim that Respondent Tincher possessed relevant information could
have been resolved in Chance had it been presented. Therefore, we conclude that the doctrine of
res judicata bars petitioner’s instant petition as to Respondent Tincher and find that the circuit
court did not err in dismissing the petition as frivolous.

        For the foregoing reasons, we dismiss petitioner’s appeal as to Respondent Rubenstein and
affirm the circuit court’s dismissal of petitioner’s petition as to Respondent Tincher.


                                                          Dismissed, in part, and Affirmed, in part.



       4
       Rule 21(a) of the West Virginia Rules of Appellate Procedure provides that a
memorandum decision “address[es] the merits of the case.”
       5
        In Chance, petitioner sued Hon. Patrick Morrisey, Attorney General of West Virginia;
Jim Rubenstein, Commissioner, West Virginia Division of Corrections; and David Ballard,
Warden, Mt. Olive Correctional Complex. See 2014 WL 998421, at *1.

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ISSUED: September 11, 2015

CONCURRED IN BY:

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




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