STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Edward Hodgson and FILED 

Mary Ann Hodgson, April 21, 2017 Plaintiffs Below, Petitioners RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 16-0495 (Randolph County 10-C-156) OF WEST VIRGINIA 

West Virginia Division of Corrections, a
 

State Agency, John/Mary Doe, and XYZ,
 

unknown Employees and Agent(s) of the Defendant,
 

Defendants Below, Respondents
 

MEMORANDUM DECISION 

Petitioners Edward Hodgson and Mary Ann Hodgson (collectively, “petitioner”),1 pro se, 

appeal the order of the Circuit Court of Randolph County, entered on April 22, 2016, refusing to 

reconsider its November 15, 2012, ruling from the bench that denied petitioner’s motion to alter or 

amend an order entered on June 5, 2012. In the June 5, 2012, order, the circuit court awarded 

summary judgment to Respondents West Virginia Division of Corrections, John/Mary Doe, and 

XYZ, unknown Employees and Agent(s) of the Defendant (collectively, “respondents” or 

“DOC”), on petitioner’s claim that the DOC was deliberately indifferent to his serious medical 

need. The DOC, by counsel Billie Jo Streyle, 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 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. 

Following his conviction for being a felon in possession of a firearm, petitioner served a 

term of incarceration in the DOC’s custody from January of 2008 to June of 2010 when he was 

released on parole. From August 1, 2008, to August 19, 2008, the DOC housed petitioner at 

Huttonsville Correctional Center (“Huttonsville”) in Randolph County, West Virginia. Following 

petitioner’s transfer to Mount Olive Correctional Complex (“Mount Olive”) on August 19, 2008, 

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Petitioner Mary Ann Hodgson alleges only a derivative claim for loss of consortium. 

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he was placed in that facility’s infirmary for injuries he incurred at Huttonsville.2 In August of 

2010, petitioner filed an action in the Circuit Court of Randolph County alleging that (1) DOC 

employees intentionally injured petitioner during his incarceration at Huttonsville; or, in the 

alternative, (2) DOC employees were deliberately indifferent to petitioner’s harming himself while 

at Huttonsville. Petitioner sought a minimum of $1,000,000 in damages. 

Following briefing and oral argument, the circuit court awarded summary judgment to the 

DOC on April 9, 2012, on petitioner’s claims that DOC employees intentionally injured him. After 

another round of briefing and argument, the circuit court awarded summary judgment to the DOC 

on June 5, 2012, on petitioner’s claim under Title 42, section 1983 of the United States Code that 

DOC employees were deliberately indifferent to his harming himself while at Huttonsville. In its 

June 5, 2012, order, the circuit court found that the DOC was not a proper defendant because a 

state agency was not a “person” for purposes of actions filed pursuant to section 1983. With regard 

to the individual respondents, the circuit court that, as DOC employees, they both possessed 

qualified immunity from petitioner’s action and, as a matter of law, were not deliberately 

indifferent to his serious medical need during his incarceration at Huttonsville. 

Following his retention of new counsel, petitioner filed a motion to alter or amend the 

circuit court’s June 5, 2012, order on June 19, 2012. In his motion, petitioner conceded that the 

DOC was not a proper defendant in a section 1983 action, but contended that his claim that the 

individual respondents were deliberately indifferent to his serious medical need should be decided 

by a jury. Petitioner acknowledged that he failed to identify any of the individual respondents. 

However, petitioner stated that, if his motion to alter or amend was granted, he would seek leave to 

amend his complaint to identify those DOC employees who were deliberately indifferent to his 

harming himself. To his motion, petitioner attached several witness statements taken during the 

DOC’s internal investigation into the cause of his injuries while at Huttonsville. 

The circuit court held a hearing on petitioner’s motion to alter or amend the circuit court’s 

June 5, 2012, order on November 15, 2012. The circuit court found that the motion was filed 

pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure on the ground that petitioner 

failed to file the motion within ten days of the entry of its June 5, 2012, order as required by Rule 

59(e). Petitioner’s attorney objected that the motion was timely filed under Rule 59(e), but 

conceded that the motion’s purpose was to give the circuit court an opportunity to “change your 

mind.” The circuit court denied petitioner’s motion to alter or amend its June 5, 2012, order 

awarding respondents summary judgment on his claim that DOC employees were deliberately 

indifferent to his serious medical need. Although the circuit court instructed the DOC’s attorney to 

prepare an order, no order was entered memorializing the court’s November 15, 2012, ruling from 

the bench. 

According to petitioner, he subsequently called the Circuit Clerk of Randolph County on 

March 1, 2016, and inquired as to when such an order would be entered by the circuit court. 

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According to the shift commander who supervised petitioner’s arrival at Mount Olive, 

petitioner “looked like he’d been beat up or in a car wreck, one of the two.” 

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Shortly thereafter, on March 18, 2016, petitioner filed a motion for relief from judgment pursuant 

to Rule 60(b) reiterating the same arguments formerly raised in his June 19, 2012, motion to alter 

or amend the circuit court’s June 5, 2012, order. By an order entered on April 22, 2016, the circuit 

court denied petitioner’s March 18, 2016, motion on the ground that it would not reconsider its 

previous decision a second time. 

Petitioner subsequently filed a notice of intent to appeal on May 20, 2016, and there is no 

dispute that petitioner perfected his appeal with regard to the circuit court’s April 22, 2016, order 

denying his March 18, 2016, motion for relief from judgment on August 23, 2016. However, 

petitioner contends that he may also appeal the denial of his June 19, 2012, motion to alter or 

amend the judgment and (with it) the circuit court’s June 5, 2012, award of summary judgment to 

the DOC on his section 1983 claim that DOC employees who were deliberately indifferent to his 

harming himself. The DOC counters that petitioner may appeal only the circuit court’s April 22, 

2016, order. We agree with petitioner. 

We find that petitioner may appeal the denial of his June 19, 2012, motion to alter or amend 

the judgment and (with it) the circuit court’s June 5, 2012, order based on the following two-step 

analysis. First, we find that petitioner’s attorney at the November 15, 2012, hearing was correct 

that the June 19, 2012, motion was filed within the ten-day time frame specified in Rule 59(e) 

given that Rule 6(a) provides that “[w]hen the period of time prescribed or allowed is fewer than 

11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded” from the 

computation of time. In syllabus point 7 of James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 

16 (1995), we held that the timely filing of a Rule 59(e) motion suspends the finality of the order 

being challenged so that the four-month appeal time under Rule 5(f) of the West Virginia Rules of 

Appellate Procedure and West Virginia Code § 58-5-4 does not begin to run until “the date of entry 

of the order disposing of the motion.” 

The second step of the analysis consists of determining the date of the entry of the order 

denying petitioner’s June 19, 2012, motion to alter or amend the judgment. “The time for filing an 

appeal commences to run and is to be computed from the entry of any of the following orders: . . . 

granting or denying a motion under Rule 59[(e)] to alter or amend the judgment[.]” Rule 72, 

W.V.R.C.P.; see also Syl. Pt. 2, Sothen v. Continental Assurance Co., 147 W.Va. 458, 128 S.E.2d 

458 (1962) (same). In this case, no order memorializing the circuit court’s November 15, 2012, 

ruling from the bench was entered. Therefore, we agree with petitioner that the circuit court’s April 

22, 2016, order denying his March 18, 2016, motion for relief from judgment also effectively 

denied his June 19, 2012, motion. Given that an order denying petitioner’s Rule 59(e) motion was 

not entered until April 22, 2016, the appeal time with regard to the circuit court’s denial of that 

motion as well as the circuit court’s June 5, 2012, award of summary judgment did not begin to run 

until the entry of the April 22, 2016, order. 

Given that the June 5, 2012, order awarding summary judgment to the DOC is under 

appeal, we utilize a de novo standard of review. Syl. Pt. 1, Wickland v. Am. Travellers Life In. Co., 

204 W.Va. 430, 513 S.E.2d 657 (1998) (holding that standard of review applicable to an appeal 

from motion to alter or amend judgment “is the same standard that would apply to the underlying 

judgment upon which the motion is based and from which the appeal to this Court is filed”). “A 

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circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 

W.Va. 189, 451 S.E.2d 755 (1994). Rule 56(c) of the West Virginia Rules of Civil Procedure 

provides that summary judgment shall be granted provided that “there is no genuine issue as to any 

material fact and that the moving party is entitled to a judgment as a matter of law.” With regard to 

the DOC itself, we find that the circuit court properly granted summary judgment as a matter of 

law because the DOC, “as an agency of the state[,] is not a ‘person’ under [section] 1983.” Pruitt v. 

West Virginia Dept. of Public Safety, 222 W.Va. 290, 296, 664 S.E.2d 175, 181 (2008). 

With regard to the individual DOC employee respondents, we find that they have 

discretion in the manner they care for an inmate’s physical and mental health. See United States v. 

DeCologero, 821 F.2d 39, 42 (1st Cir. 1987) (stating that, “though it is plain that an inmate 

deserves adequate medical care, he cannot insist that his institutional host provide him with the 

most sophisticated care that money can buy.”) (emphasis in original). However, a constitutional 

minimum exists in that deliberate indifference to an inmate’s serious medical need “constitutes 

unnecessary and wanton infliction of pain which is proscribed by the prohibition on cruel and 

unusual punishment in the Federal and State Constitutions.” Syl. Pt. 4, Nobles v. Duncil, 202 

W.Va. 523, 505 S.E.2d 442 (1998). The standard an inmate must meet to demonstrate deliberate 

indifference by DOC employees is exacting: “To establish that a health care provider’s actions 

constitute deliberate indifference to a prison inmate’s serious medical need, the treatment, or lack 

thereof, must be so grossly incompetent, inadequate, or excessive as to shock the conscience or be 

intolerable to fundamental fairness.” Id. at 526, 505 S.E.2d at 445, syl. pt. 5. The circuit court 

found both that the individual respondents were not deliberately indifferent to petitioner’s serious 

medical need and that they had qualified immunity from petitioner’s action. Given the existence of 

a constitutional minimum, we choose to decide this case on the basis of qualified immunity. 

In syllabus point 11 of West Virginia Regional Jail and Correctional Facility Authority v. 

A.B., 234 W.Va. 492, 766 S.E.2d 751 (2014), we set forth the standard for determining whether a 

state employee is entitled to qualified immunity from suit as follows: 

To the extent that governmental acts or omissions which give rise to a cause 

of action fall within the category of discretionary functions, a reviewing court must 

determine whether the plaintiff has demonstrated that such 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 in accordance with State v. Chase Securities, Inc., 188 W.Va. 356, 424 

S.E.2d 591 (1992). In absence of such a showing, both the State and its officials or 

employees charged with such acts or omissions are immune from liability. 

Given that qualified immunity affords immunity from having to undergo a trial rather than just a 

defense to liability, a claim of immunity, “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). 

Petitioner concedes that, during his delusional episodes at Huttonsville, he was “kept 

segregated [from other inmates],” monitored “via [video] surveillance,” and checked on “in person 

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every fifteen minutes.” We note that the DOC objects to petitioner’s reliance on certain documents 

produced during its internal investigation in this appeal. However, we find that the witness 

statements taken during that internal investigation generally substantiate petitioner’s concession 

that DOC employees took steps to keep him from harming himself during his delusional episodes.3 

Petitioner is merely upset that those steps proved inadequate to stop him from injuring himself to 

the extent that he was placed in the infirmary upon his transfer to Mount Olive. However, in light 

of petitioner’s concession having evidentiary support in the record,4 we find that a reasonable 

DOC employee at Huttonsville would not have known that his or her conduct was “so grossly 

incompetent, inadequate, or excessive as to shock the conscience or be intolerable to fundamental 

fairness,” which is the standard petitioner would have to meet to prove a constitutional violation. 

See Syl. Pts. 4 & 5, Nobles, 202 W.Va. at 525-26, 505 S.E.2d at 444-45.5 Therefore, we conclude 

that the circuit court did not err in awarding summary judgment to the individual respondents on 

the ground that they had qualified immunity from petitioner’s action.6 

For the foregoing reasons, we affirm the circuit court’s June 5, 2012 order awarding 

summary judgment to respondent as well as the circuit court’s April 22, 2016, order denying 

petitioner’s Rule 59(e) motion to alter or amend the judgment and his Rule 60(b) motion for relief 

from judgment. 

Affirmed. 

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The record reflects the treatment plan was to expedite petitioner’s transfer to Mount Olive 

because it was felt that Mount Olive was better equipped to treat mental health issues. The witness 

statements attached to petitioner’s June 19, 2012, motion to alter or amend the judgment reflect 

that there was also a belief that petitioner was either “faking it” or being “manipulative.” 

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We find that the witness statements are not among the documents to which the DOC 

objects because the DOC included the witness statements in its supplemental appendix. 

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Petitioner alleges that the effects of his injuries have proven to be permanent because he 

suffered a traumatic brain injury during his incarceration at Huttonsville. However, we find that 

the record contradicts that allegation. The nurse who assessed petitioner once he arrived at the 

Mount Olive infirmary told the investigator that petitioner presented with scratches, bruises, and 

black eyes that “didn’t require” medical intervention. The nurse further stated that, during his stay 

at the infirmary, petitioner’s mental condition improved. 

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Petitioner’s remaining argument is that the judge who awarded summary judgment in the 

June 5, 2012, order was later suspended from office due to misconduct. However, we note that the 

misconduct for which the judge was suspended had nothing to do with this case. Petitioner alleges 

that the judge also engaged in misconduct in this case by soliciting votes for her reelection during 

a court proceeding. The DOC counters that petitioner fails to support this claim with appropriate 

citations to the record. We agree with the DOC and decline to address this argument pursuant to 

Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, which provides that we “may 

disregard errors that are not adequately supported by specific references to the record on appeal.” 

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ISSUED: April 21, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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