Heckman v. Jividen

901 S.E.2d 297

Hank HECKMAN and Loren Garcia, Plaintiffs Below, Petitioners,

v.Betsy JIVIDEN, Jeff Sandy, and Patrick Morrisey, Defendants Below, Respondents.

No. 22-ICA-163

West Virginia Intermediate Court of Appeals.

Submitted: January 10, 2024

Filed: April 15, 2024

Appeal from the Circuit Court of Kanawha County, Honorable Tera Salango, Judge, Civil Action Nos. 21-C-903 and 21-C-904

Jeremy B. Cooper, Esq., Blackwater Law PLLC, Aspinwall, Pennsylvania, Counsel for Petitioners

Johnnie E. Brown, Esq., James A. Muldoon, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, West Virginia, Counsel for Respondent Morrisey

William E. Murray, Esq., Bailey & Wyant, PLLC, Charleston, West Virginia, Counsel for Respondents Jividen and Sandy

SCARR, CHIEF JUDGE:

Petitioners, Hank Heckman and Loren Garcia, appeal the Orders granting the Respondents’ motions to dismiss entered by the Circuit Court of Kanawha County on September 14, 2022. Petitioners brought various claims against the Respondents in their individual and official capacities for their involvement in the creation and implementation of a West Virginia Department of Corrections and Rehabilitation policy that changed the good time and parole eligibility for those reincarcerated after the revocation of their supervised release. The implementation of the new policy led to the rearrest and rein- carceration of individuals who had already been released on parole, including the Petitioners. After the Petitioners’ release pursuant to State ex rel. Phalen v. Roberts, 245 W. Va. 311, 858 S.E.2d 936 (2021), they brought suit, seeking damages, injunctive relief, and declaratory judgment for various tort and constitutional claims. The circuit court found that the Respondents were entitled to absolute, qualified, and statutory immunity from liability regarding their involvement with the creation and implementation of the policy. The circuit court also concluded that the Respondents were not "persons" under 42 U.S.C. § 1983, that the Petitioners had failed to state a claim for a taking and for money damages, and that Respondent Morrisey’s office was entitled to sovereign immunity.

Having reviewed the parties’ arguments, the record on appeal, and the controlling law, we affirm the circuit court’s September 14, 2022, dismissal orders. We affirm for the reasons discussed below, on the basis of the Respondents immunity from liability regarding the creation and implementation of the policy.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Hank Heckman was indicted in Taylor County, West Virginia, in 2010 for sexual offenses, and was subsequently committed as a youthful offender pursuant to a plea agreement. Following Mr. Heckman’s commitment as a youthful offender, he was placed on three years of supervised probation and ten years of extended supervised release. Mr. Heckman violated his supervised probation and was reincarcerated until he completed his term of supervised probation. Once released, Mr. Heckman began his ten-year term of supervised release. Mr. Heckman’s supervised release was subsequently revoked, and on July 20, 2017, he was ordered to serve all ten years of his supervised release in prison. On June 11, 2020, Mr. Heckman was released on parole after serving one fourth of his ten-year sentence.

Petitioner Loren Garcia was indicted in Randolph County, West Virginia, in 2013 for child abuse offenses. Ms. Garcia pleaded guilty and was sentenced to an indeterminate term of not less than one nor more than three years in prison followed by ten years of extended supervised release. After Ms. Garcia was released from prison and placed on supervised release, she was indicted for First Degree Robbery in Harrison County, for which she pleaded guilty and was sentenced to a determinate term of ten years in prison. As a result, Ms. Garcia’s supervised release in Randolph County was revoked and she was ordered to serve three years of her ten-year supervised release term in prison, to run consecutively to the prison term imposed in Harrison County, with an additional thirty-year period of supervised release to begin upon her release. Ms. Garcia began serving her prison terms for the Harrison County case and the revocation of her Randolph County supervised release on April 12, 2016. On December 5, 2019, Ms. Garcia was released on parole after serving more than one fourth of her thirteen-year term. Both Petitioners were released on parole after only serving a portion of the prison terms imposed after the revocation of their supervised release due to the accumulation of good time pursuant to West Virginia Code § 62-12-13 (2021) and West Virginia Code § 15A-4-17 (2021).

Following the onset of the Covid-19 pandemic, certain inmates in the custody of the Department of Corrections and Rehabilitation ("DOCR") were awarded good time credit for their efforts in making masks and cleaning to help mitigate the spread of Covid-19 in DOCR facilities. As part of the DOCR’s review of these inmates’ timesheets for the award of good time, someone at the DOCR determined that certain inmates selected to receive good time were ineligible for good time. As a result, on August 7, 2020, Respondent Betsy Jividen, the DOCR Commissioner, put the good time award program under review. At the time of this review, DOCR Policy Directive 151.02 governed good time eligibility. It did not limit good time eligibility for persons whose supervised release had been revoked, such as the Petitioners, who had already been released by this time. In October of 2020, the DOCR adopted a new policy that made persons whose supervised release had been revoked ineligible for parole and good time credit. As a result, on November 23, 2020, Policy Directive 151.06, which removed good time eligibility for persons whose supervised release had been revoked, was implemented. No formal administrative rule regarding parole eligibility was issued, as Policy Directive 151.06 was an internal DOCR policy.

On December 7, 2020, Respondent Jividen signed a series of arrest warrants for those individuals who had previously had their supervised release revoked but were subsequently released on parole based on good time credit. The reason alleged for the arrests was "clerical error or mistake." Two of these warrants were for Mr. Heckman and Ms. Garcia, and another was for an individual named Scott Phalen. There were no allegations that they had violated the terms of their parole. Soon after the issuance of these warrants, Mr. Heckman, Ms. Garcia, and Mr. Phalen were arrested and reincarcerated.

On December 22, 2020, Ms. Garcia filed an original jurisdiction habeas action in the Supreme Court of Appeals of West Virginia ("SCAWV") predicated on the theory that regardless of whether the DOCR policy changes were valid, such changes could not be retroactively applied to persons whose crimes occurred before the policy change took place on ex post facto principles. On December 23, 2020, Mr. Phalen filed a similar original jurisdiction habeas with the SCAWV which was consolidated with Ms. Garcia’s. The matter was set for oral argument to be held on April 14, 2021.

On March 25, 2021, SB 713 was introduced in the West Virginia Senate, which codified the DOCR’s policy change regarding the ineligibility of good time for persons whose supervised release had been revoked but restored the good time that was previously taken from persons revoked from supervised release up to October 21, 2020. SB 713 also provided absolute immunity to the DOCR and its agents for reincarcerating individuals based on the change in good time policy. SB 713 was signed into law by the Governor on April 19, 2021, with an effective date of April 30, 2021, amending West Virginia Code § 15A-4-17.

On April 13, 2021, the day before oral argument in the SCAWV, the DOCR preemptively recalculated Ms. Garcia’s good time based on SB 713 and determined that she had sufficient good time to discharge her three-year sentence and be parole eligible for her ten-year sentence. Ms. Garcia was released that same day, and thus her habeas petition was dismissed as moot. On April 27, 2021, Mr. Heckman filed an original jurisdiction habeas with the SCAWV on the same basis as the habeas petitions filed by Ms. Garcia and Scott Phalen. On June 16, 2021, the SCAWV issued its decision in State ex rel. Phalen v. Roberts, 245 W. Va. 311, 858 S.E.2d 936 (2021), holding that persons who had their supervised release revoked remained parole eligible, and that the DOCR was not permitted to reduce eligibility for good time for persons who had their supervised release revoked when their underlying crimes were committed prior to the effective date of SB 713, due to ex post facto principles. As a result of Phalen, Mr. Heckman was released on parole on June 24, 2021, and his habeas petition was thus dismissed as moot.

On October 8, 2021, Mr. Heckman and Ms. Garcia, both individually and on behalf of a class of persons similarly situated, filed this civil action. Their Complaint asserted the following claims and relief:

• a declaration that the absolute immunity provision of SB 713 (codified as W. Va. Code § 15A-4-17(p)) is unconstitutional;

• an injunction preventing the Respondents from relying on the absolute immunity provision in litigation;

• "Civil RICO" pursuant to 18 U.S. § 1961-1968 for the Respondents’ alleged enterprise formed to advance Governor Justice’s political interests by changing the good time and parole eligibility policies to prevent any perception of leniency to sex offenders;

• assault and battery for the effectuation of the unlawful arrests;

• false imprisonment; • abuse of process for issuing the warrants for arrest for nonexistent clerical error or mistake;

• malicious prosecution;

• violation of the Eighth Amendment of the U.S. Constitution for detaining people beyond the termination of their sentences;

• violation of the Fourth Amendment of the U.S. Constitution for the unlawful seizure;

•...