STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

The City of Princeton, FILED 

Defendant Below, Petitioner November 22, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 13-0468 (Mercer County 12-C-544) OF WEST VIRGINIA 

Jeffrey Holcomb,
 

Plaintiff Below, Respondent
 

MEMORANDUM DECISION 

Petitioner The City of Princeton (“City”), by counsel Roberta F. Green and William R. 

Slicer, appeals the March 7, 2013, order granting the motion to dismiss the City’s Chief of Police 

and denying the City’s motion to dismiss and the March 28, 2013, order of clarification 

regarding the March 7, 2013, order. Respondent, Jeffrey Holcomb, by counsel R. Keith 

Flinchum, filed his response to which petitioner replied. 

This 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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Respondent Holcomb filed his complaint on October 16, 2012, naming Christopher 

Winkler, at all times relevant to this action a police officer with the City; William L. Harman, the 

Chief of Police for the City; and the City of Princeton as defendants. Respondent alleged that on 

March 1, 2011, Winkler attempted to negotiate sexual favors from him and threatened him in 

numerous ways when respondent failed to comply.1 Respondent further alleged that Winkler, 

while engaging in these acts, was in uniform and on duty as a police officer for the City. In his 

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According to the complaint, Winkler encountered respondent in a supermarket parking 

lot. Winkler allegedly told respondent that if he performed oral sex on Winkler or performed 

other actions, Winkler would reduce a claimed monetary debt that respondent allegedly owed. 

Respondent also alleges that Winkler threatened to file felony charges against him that would 

ruin respondent’s life and prevent him from getting a job. Winkler further allegedly told 

respondent that if respondent performed oral sex on Winkler or performed other actions, Winkler 

would not contact CPS concerning a separate matter with regard to respondent’s mother. Winkler 

was indicted on two counts of bribery and sexual abuse by a parent, guardian or person in a 

position of trust on June 14, 2011. According to the complaint in the instant matter, Winkler pled 

guilty to the felony offense of solicitation of bribery in the Circuit Court of Mercer County. 

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complaint, respondent alleged that both the City and Chief Harman improperly hired and 

supervised Winkler. Respondent also challenged the sufficiency of the policies in place, 

recommending additional practices and policies, including a more extensive background check 

and additional supervision for officers who had suffered traumatic brain injuries.2 

The City and Chief Harman both filed motions to dismiss asserting qualified and 

statutory immunity. By order entered on March 7, 2013, the Circuit Court of Mercer County 

granted Chief Harman’s motion to dismiss but denied petitioner’s motion to dismiss. On March 

28, 2013, the circuit court entered its “Order of Clarification Regarding Order Granting Motion 

to Dismiss William L. Harman and Denying Motion to Dismiss City of Princeton.” In that order, 

the circuit court found that paragraphs forty through forty-four of the complaint allege conduct 

arising from the negligent performance of acts by the City’s employees while acting within the 

scope of employment. It went on to find that Count VII of the complaint falls within the range of 

governmental functions of political subdivisions that can subject the City to liability for 

damages. Therefore, it reiterated its conclusion in the March 7, 2013, order and denied the City’s 

motion to dismiss and the City’s motion to alter or amend the March 7, 2013, order. The City 

appeals from those orders. 

Pursuant to Jarvis v. West Virginia State Police, 227 W.Va. 472, 475-76, 711 S.E.2d 542, 

545-46 (2010), although the denial of a motion to dismiss for failure to state a claim upon which 

relief can be granted is interlocutory and not immediately appealable, because the instant order 

denying the motion to dismiss is predicated on qualified immunity, the order is subject to 

immediate appeal. “We will review the order to dismiss under a de novo standard. See Syllabus 

Point 4, Ewing v. Board of Educ., 202 W.Va. 228, 503 S.E.2d 541 (1998) (‘When a party, as part 

of an appeal from a final judgment, 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.’)” 

Jarvis, 227 W.Va. at 476, 711 S.E.2d at 546. 

On appeal, petitioner asserts a single assignment of error, which it divides into two 

arguments. First, petitioner asserts that the circuit court failed to construe and correctly apply the 

immunities of the Governmental Tort Claims and Insurance Reform Act (“the Act”), in the 

instance of claims that question the method of providing police protection and/or the decision 

making or the planning process related thereto. Petitioner argues that under the Act, the City is 

immune from claims challenging the decision making or planning process in developing a 

governmental policy. In support of its argument, the City cites Beckley v. Crabtree, 189 W.Va. 

94, 428 S.E.2d 317 (1993), wherein we found that the Act’s phrase “the method of providing 

police, law enforcement or fire protection” refers to the formulation and implementation of 

policy related to how police, law enforcement, or fire protection should be provided. Syl. Pt. 3, in 

part, id. 

In Smith v. Burdette, 211 W.Va. 477, 566 S.E.2d 614 (2002), we held that while a city 

may be immune from liability for negligence in creating a policy of permitting police officers to 

engage in certain actions, the city may be held liable if an officer negligently carries out that 

policy. Id. at 480-841, 566 S.E.2d at 617-18. West Virginia Code § 29-12A-4(c) states, in part, 

that 

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Respondent alleges that Winkler suffered a traumatic brain injury prior to March 1, 

2011. 

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a political subdivision is liable in damages in a civil action for injury, death, or 

loss to persons or property allegedly caused by an act or omission of the political 

subdivision or any of its employees in connection with a governmental or 

proprietary function as follows: . . . (2) Political subdivisions are liable for injury, 

death, or loss to persons or property caused by the negligent performance of acts 

by their employees while acting within the scope of employment. 

In his complaint, respondent alleged that Chief Harman acted within the scope of his 

employment with the City when he hired, trained, and supervised police officers, including 

Winkler. Respondent also alleged that the City is vicariously liable for Chief Harman’s acts 

and/or omissions. In addition, respondent contended that the City was negligent in failing to 

provide or offer Winkler a psychological evaluation after he suffered a traumatic brain injury; 

thus, the City did not conduct a reasonable investigation into Winkler’s mental status. While 

respondent set forth allegations in his complaint regarding the “lack of policy” for re-evaluation 

of officers and policy pertaining to the supervision of officers who suffer from mental health 

issues, respondent’s complaint alleged negligence by City employees in the performance of acts 

while acting within the scope of their employment. “[Q]ualified immunity, as opposed to 

absolute statutory immunity, is not an impenetrable shield that requires toleration of all manner 

of constitutional and statutory violations by public officials. Indeed, the only realistic avenue for 

vindication of statutory and constitutional guarantees when public servants abuse their offices is 

an action for damages.” Hutchison v. City of Huntington, 198 W.Va. 139, 148, 479 S.E.2d 649, 

658 (1996). 

The second part of the City’s argument is that because respondent’s claims fall within the 

immunities provided under the Act, judgment as a matter of law is the appropriate resolution of 

this matter at this time, prior to discovery. “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, Chapman v. Kane Transfer Company, Inc., 160 W.Va. 530, 236 S.E.2d 207 

(1977) (citation omitted). This Court has historically read the enumerated immunities in the Act 

in a very limited fashion. See Randall v. Fairmont City Police Dept., 186 W.Va. 336, 347, 412 

S.E.2d 737, 748 (1991) (applying the “general rule of construction in governmental tort 

legislation cases favoring liability, not immunity: unless the legislature has clearly provided for 

immunity . . . the general common-law goal of compensating injured parties for damages caused 

by negligent acts must prevail.”) There is nothing in the bare complaint in the underlying matter 

that would lead this Court to construe the enumerated immunities as broadly as the City urges. 

At a minimum, discovery is needed to determine precisely what the county policies were with 

regard to the hiring, training, and supervision of the City’s officers, including Winkler. 

Therefore, we find that the circuit court did not err in denying petitioner’s motion to dismiss at 

this juncture. 

For the foregoing reasons, we affirm. 

Affirmed. 

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ISSUED: November 22, 2013 

CONCURRED IN BY: 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

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