                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


Dale F.,
Plaintiff Below, Petitioner
                                                                                     FILED
vs.) No. 19-0594 (Marion County 18-C-187)                                          April 6, 2020
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
Robert Peters, Marion County                                                        OF WEST VIRGINIA

Prosecutors Office,
Defendants Below, Respondents



                               MEMORANDUM DECISION


         Petitioner Dale F., 1 self-represented litigant, appeals the June 10, 2019, order of the
Circuit Court of Marion County dismissing his civil action against Respondents Robert Peters
and Marion County Office of the Prosecuting Attorney. Respondents, by counsel Tiffany R.
Durst and Nathaniel D. Griffith, filed a response in support of the circuit court’s order. Petitioner
filed a reply and a supplemental reply. 2

        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.

       In petitioner’s criminal case, he was indicted in the Circuit Court of Marion County on
multiple sex offenses against his minor daughter, M.F.: (1) two counts of second-degree sexual

       1
         Due to a need to refer to petitioner’s criminal case, Supreme Court No. 19-0738, in
which he is appealing his convictions for sex offenses against his minor daughter, we will use the
child’s full initials and first names and last initials for petitioner and other family members in this
decision. See In re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va.
24, 435 S.E.2d 162 (1993); State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
       2
       By order entered January 2, 2020, this Court granted petitioner leave to file the
supplemental reply.


                                                  1
assault; (2) two counts of incest; and (3) two counts of sexual abuse by a parent, guardian,
custodian, or other person of trust. Respondent Peters was the assistant prosecuting attorney
assigned to the criminal case.

        On or about November 20, 2018, Respondent Peters and Donald Harris, an investigator
employed by Respondent Marion County Office of the Prosecuting Attorney, interviewed
petitioner’s former brother-in-law, Calvin S., for the purpose of developing prior bad act
evidence for use at any criminal trial pursuant to Rule 404(b) of the West Virginia Rules of
Evidence. According to Mr. Harris, he and Respondent Peters sought to have Calvin S. “verify[ ]
the information [they] had gotten from a reliable witness” that petitioner took inappropriate
photos of petitioner’s sister, Melissa S., when she was a minor. Calvin S. denied knowing
“anything about [petitioner] taking pictures of Melissa [S.]”

        On March 18, 2019, the circuit court held a plea hearing in petitioner’s criminal case in
which his minor daughter, M.F., was the victim. At the plea hearing, petitioner entered Kennedy
pleas to one count of incest and one count of first-degree sexual abuse, as a lesser included
offense of second-degree sexual assault, in exchange for the dismissal of the other charges. 3 At a
May 20, 2019, hearing, the circuit court denied petitioner’s motion to withdraw his pleas, but
deferred sentencing so that it could review petitioner’s psychological evaluation report. At a July
22, 2019, hearing, the circuit court denied petitioner’s renewed motion to withdraw his pleas and
sentenced petitioner to five to fifteen years of incarceration for incest and one to five years of
incarceration for first-degree sexual abuse with the terms to be served consecutively. 4 On August
21, 2019, petitioner appealed his convictions, and his appeal is pending in Supreme Court No.
19-0738. 5

        Between Calvin S.’s November 20, 2018, interview and the March 18, 2019, plea hearing
in petitioner’s criminal case, petitioner filed the instant civil action in the circuit court against
respondents on December 4, 2018, and then filed an amended complaint on December 21, 2018. 6


       3
        Relying on North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 167-68, 27
L.Ed.2d 162, 171-72 (1970), this Court held in Syllabus Point 1 of Kennedy v. Frazier, 178 W.
Va. 10, 357 S.E.2d 43 (1987), that “[a]n accused may voluntarily, knowingly and
understandingly consent to the imposition of a prison sentence even though he is unwilling to
admit participation in the crime, if he intelligently concludes that his interests require a guilty
plea and the record supports the conclusion that a jury could convict him.”
       4
         In denying petitioner’s renewed motion to withdraw his pleas, the circuit court found
that petitioner clearly understood the nature of the plea agreement and was clearly advised of the
rights he would be waiving by pleading guilty.
       5
           We take judicial notice of the appendix record filed in Supreme Court No. 19-0738.
       6
        By the March 18, 2019, plea hearing in petitioner’s criminal case, Respondent Peters no
longer worked as an assistant prosecuting attorney, having voluntarily resigned from that
position in December of 2018.


                                                 2
In the amended complaint, petitioner alleged that Respondent Peters “acted unethically and
illegally in [an] attempt to convict [petitioner.]” Specifically, petitioner alleged that the only way
Respondent Peters would have known to ask Calvin S. about inappropriate photos petitioner had
allegedly taken of Melissa S. during their youth was if Respondent Peters had illegally accessed
petitioner’s sealed juvenile court file. Petitioner further alleged that Respondent Peters shared
information from petitioner’s sealed juvenile court file with petitioner’s criminal defense
attorney. Petitioner sought $1 million in damages.7

        On January 10, 2019, respondents filed a motion to dismiss the instant civil action.
Petitioner filed a response to the motion to dismiss on January 30, 2019. Respondents filed a
reply to petitioner’s response on February 22, 2019. Following a February 27, 2019, hearing on
the motion to dismiss, the circuit court dismissed the instant civil action by order entered on June
10, 2019. 8

        Petitioner now appeals the circuit court’s June 10, 2019, order dismissing his civil action.
“Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo.”
Syl. Pt. 1, Roth v. DeFeliceCare, Inc., 226 W. Va. 214, 700 S.E.2d 183 (2010) (quoting Syl. Pt.
2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516
(1995)). “[C]laims of immunities, where ripe for disposition, should be summarily decided
before trial.” Hutchison v. City of Huntington, 198 W. Va. 139, 147, 479 S.E.2d 649, 657 (1996)
(Footnote omitted.). As we explained in Hutchison, “[t]he very heart of the immunity defense is
that it spares the defendant from having to go forward with an inquiry into the merits of the
case.” Id. at 148, 479 S.E.2d at 658. “Prosecutors in West Virginia . . . enjoy absolute immunity
under our common law.” Jarvis v. West Virginia State Police, 227 W. Va. 472, 478 n.5, 711
S.E.2d 542, 548 n.5 (2010) (citing Mooney v. Frazier, 225 W. Va. 358, 370 n.12, 693 S.E.2d
333, 345 n.12 (2010)).

        On appeal, petitioner argues that the circuit court erred in dismissing his civil action.
Petitioner concedes that Respondent Marion County Office of the Prosecuting Attorney is
immune from his action, but argues that Respondent Peters is liable in both his official and
individual capacities. Petitioner further argues that Respondent Peters’ alleged actions were
investigatory rather than prosecutorial in nature.


       7
         Both the complaint and the amended complaint listed petitioner’s sister, Melissa S., as a
plaintiff. Petitioner signed each complaint on behalf of himself and his sister. As a lay person,
petitioner may not represent another person in judicial proceedings. See Shenandoah Sales &
Serv., Inc. v. Assessor of Jefferson County, 228 W. Va. 762, 766, 724 S.E.2d 733, 737 (2012).
While Melissa S. appeared for the February 27, 2019, hearing on respondents’ motion to dismiss,
only petitioner signed the notice of appeal in this Court. Therefore, we find that Melissa S. did
not appeal the circuit court’s June 10, 2019, order and disregard any arguments allegedly raised
on her behalf.
       8
          While the circuit court dismissed petitioner’s civil action on various grounds, we find
that it is necessary for us to address only the doctrine of prosecutorial immunity as it provides an
absolute bar to the action.


                                                  3
       In Mooney, we described the scope of prosecutorial immunity:

       Regarding common law prosecutorial immunity, the following has been said:

       Prosecutors enjoy absolute immunity from civil liability for prosecutorial
       functions such as, initiating and pursuing a criminal prosecution, presenting a case
       at trial, and other conduct that is intricately associated with the judicial process. . .
       . It has been said that absolute prosecutorial immunity cannot be defeated by
       showing that the prosecutor acted wrongfully or even maliciously, or because the
       criminal defendant ultimately prevailed on appeal or in a habeas corpus
       proceeding.

               The absolute immunity afforded to prosecutors attaches to the
               functions they perform, and not merely to the office. Therefore, it
               has been recognized that a prosecutor is entitled only to qualified
               immunity when performing actions in an investigatory or
               administrative capacity.

       Franklin D. Cleckley, et al., Litigation Handbook on West Virginia Rules of Civil
       Procedure, § 8(c), at 213 (3d ed. 2008). See Imbler v. Pachtman, 424 U.S. 409, 96
       S.Ct. 984, 47 L.Ed.2d 128 (1976) (extending absolute immunity to prosecutors
       from civil rights claims); Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606,
       125 L.Ed.2d 209 (1993) (state prosecutor denied absolute immunity in suit that
       involved job functions that were investigatory rather than prosecutorial in nature
       and thus were not performed in the role as advocate for the state).

225 W. Va. at 370 n.12, 693 S.E.2d at 345 n.12. Here, petitioner argues that the development of
Rule 404(b) evidence constitutes an investigatory rather than a prosecutorial function. We find
that petitioner’s argument is without merit. Subject to its limitations, Rule 404(b) permits the
admission of prior bad act evidence in criminal trials. Respondent Peters interviewed Calvin S.
for the purpose of developing such evidence after the initiation of petitioner’s criminal case. As
alleged in petitioner’s amended complaint, Respondent Peters “acted unethically and illegally in
[an] attempt to convict [petitioner.]” (Emphasis added.).

       “[A]bsolute prosecutorial immunity cannot be defeated by showing that the prosecutor
acted wrongfully or even maliciously[.]” Id. Given the allegations in the amended complaint,
respondents argue that Respondent Peters is absolutely immune from petitioner’s action. We
agree and conclude that the circuit court properly dismissed petitioner’s civil action due to the
doctrine of prosecutorial immunity.




                                                  4
        For the foregoing reasons, we affirm the circuit court’s June 10, 2019, order dismissing
his civil action. 9
                                                                                       Affirmed.


ISSUED: April 6, 2020

CONCURRED IN BY:

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




       9
         Seeking to keep his civil action alive, petitioner argues that the circuit court erred in
failing to rule on his motions to add the State of West Virginia and Mr. Harris, the investigator
with whom Respondent Peters interviewed Calvin S., as defendants. Petitioner further argues
that the State was served with the amended complaint and identifies The Honorable Patrick
Morrisey, Attorney General of West Virginia, as the State’s counsel. Based on our review of the
record, we find that the Attorney General was not served with the amended complaint and note
that petitioner does not allege that Mr. Harris was served with the amended complaint.
Moreover, we find that the circuit court’s failure to rule on petitioner’s motions to add the State
of West Virginia and Mr. Harris as defendants did not constitute error as it did not affect the
outcome of this case.

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