Tim Secrist and the West Virginia Department of Human Services v. Tammy Watkins, Administratrix of the Estate of William McKinsey May
CourtWest Virginia Supreme Court
Date FiledNovember 4, 2026
Docket24-670
StatusPublished
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Full Opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2026 Term FILED
_______________
November 4, 2026
released at 3:00 p.m.
No. 24-670 C. CASEY FORBES, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
TIM SECRIST and the
WEST VIRGINIA DEPARTMENT OF HUMAN SERVICES,
Petitioners,
v.
TAMMY WATKINS,
Administratrix of the Estate of William McKinsey May,
Respondent.
__________________________________________________________
Appeal from the Circuit Court of Logan County
The Honorable Kelly Gilmore Codispoti, Judge
Civil Action No. CC-23-2022-C-96
REVERSED AND REMANDED WITH DIRECTIONS
____________________________________________________________
Submitted: October 13, 2026
Filed: November 4, 2026
Marc C. Dean, Esq. Robert B. Kuenzel, Esq.
Steptoe & Johnson PLLC Kuenzel Law, PLLC
Charleston, West Virginia Chapmanville, West Virginia
Counsel for Petitioners Counsel for Respondent
JUSTICE WOOTON delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A circuit court’s denial of a motion to dismiss that is predicated on
qualified immunity is an interlocutory ruling which is subject to immediate appeal under
the ‘collateral order’ doctrine.” Syl. Pt. 1, W. Va. Bd. of Ed. v. Marple, 236 W. Va. 654,
783 S.E.2d 75 (2015).
2. “‘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., 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).” Syl. Pt. 7, W. Va. Reg’l Jail & Corr. Facility
Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).
3. “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).
WOOTON, Justice:
Respondent Tammy Watkins, the administratrix of her adult brother’s estate,
filed a wrongful death claim against Petitioners Tim Secrist, an Adult Protective Services
(“APS”) employee, and the West Virginia Department of Human Services (“DHS”).1 Mr.
Secrist investigated allegations that Respondent’s brother was abused or neglected.
Respondent contends that Mr. Secrist’s actions—failing to remove her brother from his
residence, closing the referral, and failing to contact law enforcement or court officials
about this case—proximately caused her brother’s death. Petitioners contend that the
circuit court should have granted their motions2 to dismiss on the basis of qualified
immunity because Mr. Secrist’s complained of actions (1) involved discretionary
decisions, (2) that did not violate any clearly established right or law, and (3) were not
fraudulent, malicious, or oppressive. We agree with Petitioners and find that they are
entitled to qualified immunity. We therefore reverse the Circuit Court of Logan County’s
October 9, 2024, order and remand this matter to the circuit court with instructions to grant
Petitioners’ motions to dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND
1
The DHS operates APS. See W. Va. Code § 9-6-2(a) (2024) (“There is continued
within the Department of Human Services the system of adult protective services.”).
2
Mr. Secrist and the DHS filed separate motions to dismiss.
1
In this appeal, we address whether Petitioners are entitled to qualified
immunity based on the allegations asserted in Respondent’s complaint. Because this is an
appeal from a motion to dismiss, we construe the complaint in the light most favorable to
Respondent and take all allegations in the complaint as true. See Mountaineer Fire &
Rescue Equip., LLC v. City Nat’l Bank of W. Va., 244 W. Va. 508, 515, 854 S.E.2d 870,
877 (2020).
The complaint alleges that the decedent, William McKinsey May (“Mr.
May”), “was a ‘vulnerable adult’ as defined in West Virginia Code § 9-6-1(5).”3 During
the relevant events herein, Mr. May lived with his sister, Candus May, and her boyfriend,
Charles Adkins, in a house in Logan County, West Virginia (“the residence”). Mr. May
required assistance with his daily living activities including personal hygiene, food
preparation, and taking medication.
On April 16, 2020, the Logan County APS office received a referral
regarding abuse and neglect allegations concerning Mr. May.4 On April 23, 2020, an APS
employee, Mr. Secrist, visited the residence and interviewed Mr. May, Candus May, and
Charles Adkins. Mr. Secrist documented the condition of the property which included (1)
3
See W. Va. Code § 9-6-1(5) (2024) (“‘Vulnerable adult’ means any person over
the age of 18, or an emancipated minor, who by reason of physical or mental condition is
unable to independently carry on the daily activities of life necessary to sustaining life and
reasonable health and protection[.]”).
4
Respondent Tammy Watkins was the individual who contacted APS.
2
building materials and debris in the yard; (2) lights in the residence being operated by a
generator because electrical service had not been installed; (3) a refrigerator that did not
work; (4) excessive debris and clutter in the home; and (5) the only source of water in the
residence being from a bathroom sink.5
Mr. Secrist spoke with Mr. May, who was seated in a recliner, and noted that
he was “alert and oriented with gray hair and a trimmed beard;” that his feet were not black
due to a medical condition as had been reported in the referral, though his toenails may
have been neglected; and that he was “not overly thin, though . . . he could use an extra
few pounds.” Mr. May told Mr. Secrist that he liked living in the residence.
After Mr. Secrist left the residence, he called Candus May later that day and
discussed specific repairs that needed to be made, including removing debris and clutter
from the residence and obtaining a working refrigerator. During this call, Candus May told
Mr. Secrist that the power company was scheduled to install electrical service on May 3,
5
The reports Mr. Secrist completed in this matter are referenced directly and
indirectly in Respondent’s complaint. These reports were also attached to Petitioners’
motions to dismiss. Therefore, these reports may be considered at the motion to dismiss
stage. See Chesapeake Appalachia, L.L.C. v. Hickman, 236 W. Va. 421, 434 n.14, 781
S.E.2d 198, 211 n.14 (2015) (“‘A circuit court ruling on a motion to dismiss under Rule
12(b)(6) of the West Virginia Rules of Civil Procedure may properly consider exhibits
attached to the complaint without converting the motion to a Rule 56 motion for summary
judgment.’ Syllabus Point 1, Forshey v. Jackson, 222 W.Va. 743, 671 S.E.2d 748 (2008).
On a motion to dismiss, a court may consider, ‘in addition to the pleadings, documents
annexed to it, and other materials fairly incorporated within it. This sometimes includes
documents referred to in the complaint but not annexed to it.’ Franklin D. Cleckley, Robin
Jean Davis & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil
Procedure § 12(b)(6) at 387 (4th Ed.2012).”).
3
2020. Mr. Secrist stated that he would return on May 4, 2020, to inspect the residence, and
that if the electrical service and other deficiencies were not addressed, he would start the
process of removing Mr. May from the residence.
On May 4, 2020, Mr. Secrist returned to the residence and observed that a
number of improvements had occurred since his prior visit: some clutter had been cleared;
steps had been added to the front porch; the kitchen area “was more open;” and a generator-
powered mini-refrigerator containing food had been added. Additionally, during this visit,
Mr. Secrist “asked [Mr. May] if he was doing alright and he stated that he was.” Further,
Mr. Secrist asked Candus May about the electrical service and she told him that the power
company had been contacted but that it needed to “set a new pole” before installation. She
told Mr. Secrist that she would call him when the installation occurred. According to the
complaint, Mr. Secrist did not check on whether additional water outlets had been
connected, did not examine Mr. May’s feet, and did not inquire about Mr. May’s
prescription medications during this visit. Mr. Secrist’s report following this visit provided
that Candus May and Charles Adkins “had obviously been working hard to get things in
compliance with the directives from [APS] on the initial visit. [Mr. Secrist] will check
back soon to see about the electricity. [Mr. Secrist] sees no reason at this time to begin the
process of removing [Mr. May] from this home.”
On May 20, 2020, Mr. Secrist made his third visit to the residence. He noted
that the house was “still a wreck” due to remodeling. Further, he observed that the utility
pole had been set, but electrical service had not been installed. Charles Adkins told him
4
that the power company had been to the property but had not completed the installation
because of its concern with the placement of a pool. Also, Mr. Secrist told Candus May
and Charles Adkins that a handrail needed to be installed on the front steps and that they
needed to call him when the electrical service installation occurred.
On June 3, 2020, Mr. Secrist called Candus May and asked about the
electrical service. She told him that Charles Adkins was currently obtaining wiring from
Lowe’s and that the power company and a certified electrician would then “come and
inspect the hook-up and then connect the power.” She stated that she would contact Mr.
Secrist when the installation was complete. She also told Mr. Secrist that a handrail had
been installed on the front steps.
Respondent’s complaint provides that on June 30, 2020, Mr. Secrist “closed
the referral and did not open an APS case.” Further, the complaint alleges that the APS
case was closed “despite not receiving any calls from Candus May [after June 3, 2020]
regarding the issues involving the home; . . . despite not returning to the residence for one
month to ensure the safety of William McKinsey May; [and] despite not knowing whether
electric service was connected[.]”
Mr. May died on August 14, 2020, at the age of 62, while in the care of
Hubbard Hospice House in Charleston, West Virginia. Mr. May’s death certificate
provided that his cause of death was “[c]omplications of multiple blunt force injuries” and
5
that a contributing factor to his death was “[a]therosclerotic cardiovascular disease[.]” No
criminal charges were filed in relation to Mr. May’s death.
Following Mr. May’s death, Respondent was appointed administratrix of his
estate and filed this lawsuit. The complaint alleges that if Mr. Secrist had removed Mr.
May from the residence, referred the matter to the prosecuting attorney, or sought court
intervention, Mr. May would not have remained in the home where his fatal injuries
occurred, and that Mr. May’s death “was the proximate and/or direct result of Defendant
Secrist’s willful and wanton misconduct and/or intentional misconduct.” The complaint
does not specifically address or explain how Mr. May suffered the fatal injuries or the
precise date when these injuries occurred. Further, the complaint alleges that Mr. Secrist’s
failure to report his findings to the prosecuting attorney violated West Virginia Code § 9-
6-14.6
In response, Petitioners filed motions to dismiss asserting that they were
entitled to qualified immunity. Respondent filed a joint response to these motions, arguing
that (1) Petitioners’ complained of actions constitute “ministerial functions which are
violative of statutory duties;” (2) Mr. Secrist’s violations of West Virginia Code § 9-6-14
6
See W. Va. Code § 9-6-14 (1984) (“Any person subject to the mandatory reporting
provisions of this article who knowingly fails to make any report required herein or any
person who knowingly prevents another person from making such a report is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred
dollars or imprisoned in the county jail for not more than ten days, or both fined and
imprisoned.”).
6
and closing the APS case without confirming Mr. May’s safety, constituted willful, wanton
misconduct and/or intentional misconduct in violation of West Virginia Code § 9-6-2(d);7
and (3) whether Petitioners committed a statutory violation or if their actions constituted
willful and wanton conduct, are questions of fact for the jury.
Following a hearing, the circuit court entered its order denying the motions
to dismiss. It agreed with Respondent and concluded that whether Mr. Secrist’s acts were
ministerial functions that violated statutory duties under West Virginia Code § 9-6-14, and
whether his conduct was willful, wanton, and/or intentional, involved questions of fact
requiring jury determination. After entry of the circuit court’s order, Petitioners filed this
appeal.
II. STANDARD OF REVIEW
The circuit court’s order denying Petitioners’ motions to dismiss is
immediately appealable under the collateral order doctrine. See Syl. Pt. 1, W. Va. Bd. of
Ed. v. Marple, 236 W. Va. 654, 783 S.E.2d 75 (2015) (“A circuit court’s denial of a motion
to dismiss that is predicated on qualified immunity is an interlocutory ruling which is
subject to immediate appeal under the ‘collateral order’ doctrine.”). Additionally, “When
7
See W. Va. Code § 9-6-2(d) (2024) (“An adult protective services caseworker may
not be held personally liable for any professional decision or action arrived at in the
performance of his or her official duties as set forth in this section or agency rules
promulgated: Provided, That nothing in this subsection protects any adult protective
services worker from any liability arising from the operation of a motor vehicle or for any
loss caused by willful and wanton misconduct or intentional misconduct.”).
7
a party . . . assigns as error a circuit court’s denial of a motion to dismiss, the circuit court’s
disposition of the motion to dismiss will be reviewed de novo.” Syl. Pt. 4, in part, Ewing
v. Bd. of Ed. of Cnty. of Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998). We again note
that “[f]or purposes of the motion to dismiss, the complaint is construed in the light most
favorable to plaintiff, and its allegations are to be taken as true.” John W. Lodge Distrib.
Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605, 245 S.E.2d 157, 158 (1978). “The trial
court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not
dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” Syl. Pt. 3, in part, Chapman
v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977) (internal citation and
quotation omitted). With these standards in mind, we consider the parties’ arguments.
III. ANALYSIS
On appeal, Petitioners argue that they are entitled to qualified immunity and
that the circuit court erred by denying their motions to dismiss. According to Petitioners,
the allegations against Mr. Secrist, including failing to remove Mr. May from the residence,
closing the referral, and failing to contact law enforcement or court officials about this case,
involved discretionary decisions that did not violate any clearly established right or law,
and were not fraudulent, malicious, or oppressive. Further, Petitioners assert that the
qualified immunity determination is a question of law for the court to decide; that
Respondent failed to meet the heightened pleading standard required to overcome qualified
8
immunity; and that the complaint only included “skeletal assertions” that Mr. Secrist’s
actions involved “willful and wanton misconduct and/or intentional misconduct.”
As explained below, we agree with Petitioners. We begin our analysis by
addressing the circuit court’s denial of qualified immunity based on its ruling that a jury
needed to make certain factual determinations. We then explain our conclusion that Mr.
Secrist’s acts were discretionary and that Petitioners are entitled to qualified immunity as
a matter of law.
We first address the circuit court’s denial of qualified immunity based on its
ruling that a jury needed to make certain factual determinations. The circuit court did not
examine Petitioners’ motions to dismiss pursuant to the qualified immunity framework this
Court has established. Instead, the circuit court addressed a variety of legal concepts
including negligence, due care, proximate cause, concurrent negligence, and statutory
immunity, and concluded that under these theories, Petitioners were not entitled to
qualified immunity because multiple issues in this case, including whether Mr. Secrist’s
acts were ministerial, presented questions of fact for a jury to resolve. The circuit court’s
order provides:
[I]f, as asserted by plaintiff, Defendant Secrist’s actions were
ministerial functions which are violative of statutory duties
pursuant to W.Va. Code §9-6-14, then Defendant Secrist may
be held liable and this is a matter for jury consideration.
....
9
[I]f, as asserted by plaintiff, Defendant Secrist’s actions were
willful, wanton and/or intentional pursuant to W.Va. Code §9-
6-2(d), then these allegations present questions of fact for jury
consideration.
The circuit court’s order is not supported by our well-established caselaw
providing that, absent certain factual disputes, a qualified immunity claim presents a
question of law for a court to decide. We have held that
it is the jury, not the judge, who must decide the disputed
“foundational” or “historical” facts that underlie the immunity
determination, but it is solely the prerogative of the court to
make the ultimate legal conclusion. What this means is that
unless there is a dispute of facts, the ultimate question of
qualified or statutory immunity is ripe for summary
disposition.
Hutchison v. City of Huntington, 198 W. Va. 139, 149, 479 S.E.2d 649, 659 (1996). The
Court in Hutchison explained that an assertion of qualified immunity “should be heard and
resolved prior to any trial because, if the claim of immunity is proper and valid, the very
thing from which the defendant is immune—a trial—will absent a pretrial ruling occur and
cannot be remedied by a later appeal.” Id. at 149 n.13, 479 S.E.2d at 659 n.13. See Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985) (“The entitlement is an immunity from suit rather than
a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial.”). To further this purpose, we require heightened
pleading in cases involving immunities. Hutchinson, 198 W. Va. at 149, 479 S.E.2d at 659
(“[I]n civil actions where immunities are implicated, the trial court must insist on
heightened pleading by the plaintiff.”).
10
The facts of the instant case are not disputed, particularly at the motion to
dismiss stage where the allegations in the complaint are taken as true. Those allegations
are clear and straightforward: Respondent alleges that Mr. Secrist’s failure to remove Mr.
May from the residence, closing the referral, and failure to contact law enforcement or
court officials about this case, resulted in Mr. May’s death. Thus, whether qualified
immunity applies is a question of law for the court to decide; it is not a question requiring
a jury to resolve disputed facts. Therefore, we find that the circuit court’s ruling on this
issue was erroneous and we proceed to examine whether, as a matter of law, Petitioners
are entitled to qualified immunity.
This Court has explained that
“[i]n 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., 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).
Syl. Pt. 7, W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d
751 (2014).8
8
There is no allegation that Petitioners’ insurance policy waived the defense of
qualified immunity. Likewise, there is no allegation that Mr. Secrist was acting outside
the scope of his employment.
11
Our immunity analysis begins with an inquiry into the nature of Petitioners’
actions:
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).
Id., Syl. Pt. 10.
Respondent asserted that Mr. Secrist’s actions—failing to remove Mr. May
from the residence, closing the referral, and failing to contact law enforcement or court
officials about this case—are ministerial functions. Ministerial functions “are official acts
which, under the law, are so well prescribed, certain, and imperative that nothing is left to
the public official’s discretion.” State v. Chase Sec., Inc., 188 W. Va. 356, 364, 424 S.E.2d
591, 599 (1992). Conversely, we have described discretionary acts as follows:
[I]f 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.
12
Clark v. Dunn, 195 W. Va. 272, 278, 465 S.E.2d 374, 380 (1995) (Internal citation
omitted).
Applying the foregoing to Petitioners’ actions in this case, we easily
conclude that the acts at issue are discretionary. This Court has examined APS’s statutory
duties and responsibilities and found that investigating suspected abuse of an adult
protected person is a discretionary APS function. See Markham v. W. Va. Dep’t of Health
& Hum. Res., No. 19-0163, 2020 WL 2735435, at *6 (W. Va. May 26, 2020)
(memorandum decision) (“The circuit court found that [W. Va. Code § 9-6-2(c)’s] plain
language makes clear that Adult Protective Services ‘is charged with preventing, reducing,
eliminating and investigating the exploitation and abuse and/or neglect of protected persons
in this State.’ Based on this statutory language setting forth the duties and responsibilities
of Adult Protective Services, the circuit court determined that the ‘complained of acts in
this case relate to the discretionary government functions’ of the [DHS]. We agree.”).
Similarly, services provided by APS “may include, but are not limited to,” receiving
reports, investigating them, case planning and monitoring, and arranging protective
services. W. Va. Code § 9-6-1(2)(A)–(D). These activities, receiving and reviewing
reports, conducting investigations, developing case planning and monitoring, and
arranging protective services, all require discretionary decisions to be made at each stage
of a particular APS case.
Additionally, in Crouch v. Gillispie, 240 W. Va. 229, 809 S.E.2d 699 (2018),
we examined an analogous factual scenario involving an investigation by Child Protective
13
Services (“CPS”) and determined that the conduct at issue was discretionary. In Crouch,
we addressed whether a CPS official’s actions—closing an abuse and neglect case without
removing the child from the home following an investigation—constituted a discretionary
judgment call that was protected by qualified immunity. We explained that
[t]he challenges facing a CPS worker in making the
determination of whether or not a situation of present danger
exists and . . . whether to remove a child from a home, strikes
at the heart of qualified immunity:
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.
Qualified immunity is justified and defined by the
functions it protects and serves, not by the person to whom it
attaches. We have further explained that the purpose of such
official immunity is not to protect an erring official, but to
insulate the decisionmaking process from the harassment of
prospective litigation. The provision of immunity rests on the
view that the threat of liability will make officials unduly timid
in carrying out their official duties.
Id. at 236, 809 S.E.2d at 706 (Emphasis added, internal citation and quotation omitted).
In the present case, Mr. Secrist made the decision to close the referral without
removing Mr. May from the residence. This decision was made following Mr. Secrist’s
investigation which included multiple visits to the residence and multiple interviews with
Mr. May and Candus May. We note that prior to closing the referral, Mr. Secrist’s reports
documented that multiple improvements had been made to the residence. Consistent with
14
this Court’s previous recognition that investigating abuse or neglect of an adult protected
person is a discretionary APS function, we find that Mr. Secrist’s actions were
discretionary. See Markham, 2020 WL 2735435, at *6. Therefore, we move to the next
step of our qualified immunity analysis.
Because Mr. Secrist’s actions were discretionary, Petitioners are entitled to
qualified immunity unless Respondent can demonstrate that Petitioners “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[.]” Syl. Pt 11, in part, A.B., 234 W. Va. at 507, 766 S.E.2d at 766. We have
recognized that “the question of whether the constitutional or statutory right was clearly
established is one of law for the court.” Hutchison, 198 W.Va. at 149, 479 S.E.2d at 659.
Further, we have explained that specificity is required:
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.
Id. at 149 n.11, 479 S.E.2d at 659 n.11 (internal quotation and citation omitted).
In this regard, Respondent’s complaint alleges two potential clearly
established statutory rights to overcome Petitioners’ claim to qualified immunity. First,
the complaint provides that Mr. Secrist’s “failure to report his findings to the prosecuting
15
attorney [was] a direct violation of West Virginia Code § 9-6-14.”9 West Virginia Code
§ 9-6-14 provides misdemeanor criminal penalties for a mandatory reporter “who
knowingly fails to make any report required herein[.]” Id. This statute does not confer a
clearly established right upon a vulnerable adult, nor does it specify or define how an APS
abuse and neglect investigation is to be conducted.10 Therefore, we find West Virginia
9
See footnote 6.
10
Additionally, we note that the duty to file a report concerning the abuse or neglect
of an adult protected person with law enforcement or the prosecuting attorney appears in
West Virginia Code § 9-6-11(b)(2). This requirement, however, clearly involves a
discretionary function, rather than a ministerial command. The statute provides that after
APS receives a report of abuse and neglect, it “shall, upon receiving any such report, take
such action as may be appropriate and shall maintain a record thereof.” W. Va. Code § 9-
6-11(a) (Emphasis added). Further, we note that West Virginia Code § 9-6-9(a) requires
mandatory reporters who have
reasonable cause to believe that a vulnerable adult or facility
resident is or has been neglected, abused, financially exploited
or placed in an emergency situation, or if such person observes
a vulnerable adult or facility resident being subjected to
conditions that are likely to result in abuse, neglect, financial
exploitation, or an emergency situation, the person shall
immediately report the circumstances pursuant to the
provisions of § 9-6-11 of this code[.]
Id. (Emphasis added).
Again, the reporting requirement in this statute involves a discretionary
decision, whether a reporter has “reasonable cause to believe” abuse or neglect exists. The
statute does not confer a clearly established right upon a vulnerable adult, nor does it
specify or define how APS abuse and neglect investigations are to be conducted.
16
Code § 9-6-14 does not afford Respondent with a clearly established statutory right
sufficient to overcome Petitioners’ claim to qualified immunity.
Next, Respondent’s complaint alleged that Mr. Secrist’s “conduct . . . is not
immune from suit pursuant to West Virginia Code § 9-6-211 as his actions constitute willful
and wanton misconduct and/or intentional misconduct either of which negates immunity.”
We disagree. West Virginia Code § 9-6-2(d) confers statutory immunity on an APS worker
for “any professional decision or action arrived at in the performance of his or her official
duties[.]” Id. It contains an exception to this statutory immunity for losses “caused by
willful and wanton misconduct or intentional misconduct.” Id. This statutory immunity is
not relevant to our qualified immunity analysis. Stated differently, West Virginia Code §
9-6-2(d) does not confer a clearly established right upon a vulnerable adult, nor does it
specify or define how an APS abuse and neglect investigations is to be conducted. Instead,
West Virginia Code § 9-6-2(d) confers statutory immunity on an APS worker, subject to
the willful, wanton and/or intentional misconduct exception. Therefore, we find that the
statutory immunity conferred on an APS worker by West Virginia Code § 9-6-2(d) does
not afford Respondent with a clearly established statutory right sufficient to overcome
Petitioners’ claim to qualified immunity.
Because Respondent has not set forth a clearly established right sufficient to
overcome Petitioners’ claim to qualified immunity, our final inquiry is whether Respondent
11
See footnote 7.
17
can demonstrate that Petitioners’ actions were “fraudulent, malicious, or oppressive[.]”
Syl. Pt 11, in part, A.B., 234 W. Va. at 507, 766 S.E.2d at 766. Respondent’s complaint
does not assert that Petitioners’ conduct was “malicious,” nor does it allege “fraudulent”
or “oppressive” conduct.12 Instead, the allegations in the complaint describe Mr. Secrist’s
actions and inactions, failing to remove Mr. May, failing to report to the prosecuting
attorney, and closing the referral, and labels these as “willful and wanton misconduct
and/or intentional misconduct.” That description relates to the statutory immunity
exception in West Virginia Code § 9-6-2(d); it does not address, nor does it satisfy, the
“fraudulent, malicious, or oppressive” qualified immunity standard.
Even assuming arguendo that these allegations could defeat Petitioners’
claim to qualified immunity under our “fraudulent, malicious, or oppressive” analysis, we
note that the complaint offers no supporting factual allegations indicating how Mr. Secrist’s
discretionary actions, which included making multiple visits to the residence,
recommending repairs and improvements, and conducting multiple interviews with Mr.
May and Candus May, were made willfully, wantonly, or with intentional misconduct.
12
There is no allegation that Mr. Secrist acted fraudulently. Further, the complaint
does not allege that Mr. Secrist had an improper motive; therefore, we find no malice or
oppression. See W. Va. Dep’t of Hum. Servs. v. David B., Next Friend of J.B., 251 W. Va.
217, 230, 911 S.E.2d 884, 897 (2024) (Addressing oppression in the context of qualified
immunity and stating, “it has been observed that [q]ualified immunity is not available if a
public official acted with an improper motive[.] An official will also not be entitled to
qualified immunity . . . where the official demonstrates a bad or corrupt motive[.]” (Internal
quotation and citation omitted)).
18
This Court has found that “[g]eneral allegations . . . are insufficient,” and a complaint must
assert more than “mere sketchy generalizations of a conclusive nature unsupported by
operative facts.” Newton v. Morgantown Mach. & Hydraulics of W. Va., Inc., 242 W. Va.
650, 654, 838 S.E.2d 734, 738 (2019) (Quotations and citation omitted). Further, these
unsupported allegations fall far short of the heightened pleading standard that is required
when immunities are implicated. See Hutchinson, 198 W. Va. at 149, 479 S.E.2d at 659
(“[I]n civil actions where immunities are implicated, the trial court must insist on
heightened pleading by the plaintiff.”).
In essence, while Respondent makes the skeletal, unsupported allegation that
Mr. Secrist’s actions were committed willfully, wantonly, or with intentional misconduct,
the gravamen of Respondent’s complaint is that if Mr. Secrist had done his job properly,
the harm would not have occurred. We have repeatedly rejected this argument in other
qualified immunity cases, finding that this argument is insufficient to overcome immunity:
Also, like Payne, in discovery, respondent made the skeletal
assertion that if D.H. were properly trained and supervised, the
rape would not have occurred. This illusory and languid
contention is no more sufficient to overcome the State’s
immunity in this case than in Payne: “Respondents seem to
argue simply that if the [DHS] defendants were doing their job
properly, this incident would not have occurred. . . . Although
this overly simplistic analysis may be appealing in light of
these tragic events, qualified immunity insulates the State and
its agencies from liability based on vague or principled notions
[of government responsibility].”
Crouch, 240 W. Va. at 238, 809 S.E.2d at 708 (quoting W. Va. Dep’t of Health & Human
Res. v. Payne, 231 W. Va. 563, 574, 746 S.E.2d 554, 565 (2013)).