IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

September 2023 Term 

_____________ 

No. 22-779 

_____________ 

STATE OF WEST VIRGINIA EX REL. 

WEST VIRGINIA ATTORNEY-GENERAL, 

MEDICAID FRAUD CONTROL UNIT; AND 

NATHAN R. LYLE, IN HIS INDIVIDUAL CAPACITY, AND 

IN HIS CAPACITY AS AN EMPLOYEE OF 

THE WEST VIRGINIA ATTORNEY-GENERAL 

MEDICAID FRAUD CONTROL UNIT, 

Petitioners,

V. 

THE HONORABLE KENNETH D. BALLARD, 

JUDGE OF THE CIRCUIT COURT OF KANAWHA COUNTY; 

AND HISEL BAILEY, 

Respondents. 

________________________________________________ 

PETITION FOR WRIT OF PROHIBITION 

WRIT GRANTED 

________________________________________________ 

AND 

_____________ 

No. 22-781 

_____________ 

WEST VIRGINIA ATTORNEY-GENERAL, 

MEDICAID FRAUD CONTROL UNIT; AND 

NATHAN R. LYLE, IN HIS INDIVIDUAL CAPACITY, AND 

IN HIS CAPACITY AS AN EMPLOYEE OF 

FILED

November 9, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
THE WEST VIRGINIA ATTORNEY-GENERAL,

MEDICAID FRAUD CONTROL UNIT,

Defendants Below, Petitioners,

V.

HISEL BAILEY,

Plaintiff Below, Respondent.

________________________________________________

Appeal from the Circuit Court of Kanawha County

The Honorable Kenneth D. Ballard, Judge

Civil Action No. 22-C-145

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

________________________________________________

Submitted: September 13, 2023

Filed: November 9, 2023

Michael D. Dunham, Esq.

Caleb B. David, Esq.

Tyler L. Rittenhouse, Esq.

Shuman McCuskey Slicer PLLC

Charleston, West Virginia

Attorneys for the Petitioners

John J. Brewster, Esq.

Scott H. Kaminski, Esq.

Ray, Winton & Kelley, PLLC

Charleston, West Virginia

Attorneys for Respondent

Hisel Bailey

JUSTICE BUNN delivered the Opinion of the Court.
i

SYLLABUS BY THE COURT

1. “Because Title 42, U.S.C.A. § 1983 (1979) does not create substantive 

rights, but rather provides a remedy for pre-existing rights, all claims under this section 

must allege a specific violation of the constitution or ‘laws’ of the United States. [To]

recover damages under § 1983, a plaintiff must show that (1) the conduct complained of 

was committed by a person acting under color of state law; and (2) [the] conduct deprived 

a person of rights, privileges or immunities secured by the Constitution or laws of the 

United States.” Syllabus point 4, Hutchison v. City of Huntington, 198 W. Va. 139, 479 

S.E.2d 649 (1996).

2. “A government-official defendant can be held liable only for his or 

her own misconduct. Therefore, to succeed on a claim of an alleged constitutional violation 

under United States Code title 42, section 1983, a plaintiff must prove that each 

government-official defendant, through that official’s own individual actions, has 

personally and directly violated the Constitution, and that such violation caused or 

contributed to the plaintiff’s injuries.” Syllabus point 3, Vinson v. Butcher, 244 W. Va. 144, 

851 S.E.2d 807 (2020).
ii

3. “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.” Syllabus point 1, West Virginia Board of Education v. 

Marple, 236 W. Va. 654, 783 S.E.2d 75 (2015).

4. “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.” Syllabus point 11, West Virginia 

Regional Jail and Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 

(2014).

5. “If the plaintiff identifies a clearly established right or law which has 

been violated by the acts or omissions of the State, its agencies, officials, or employees, or 

can otherwise identify fraudulent, malicious, or oppressive acts committed by such official 

or employee, the court must determine whether such acts or omissions were within the 

scope of the public official or employee’s duties, authority, and/or employment. To the 
iii

extent that such official or employee is determined to have been acting outside of the scope 

of his duties, authority, and/or employment, the State and/or its agencies are immune from 

vicarious liability, but the public employee or official is not entitled to immunity in 

accordance with State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992) 

and its progeny. If the public official or employee was acting within the scope of his duties, 

authority, and/or employment, the State and/or its agencies may be held liable for such acts 

or omissions under the doctrine of respondeat superior along with the public official or 

employee.” Syllabus point 12, West Virginia Regional Jail and Correctional Facility 

Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).
1

BUNN, Justice:

In these consolidated proceedings, the West Virginia Attorney General’s 

Medicaid Fraud Control Unit (“MFCU”) and Nathan R. Lyle, a MFCU investigator, seek 

review of the circuit court’s denial of their motion to dismiss certain claims alleged in a 

civil rights action brought by Mr. Hisel Bailey. In case number 22-779, MFCU and Mr. 

Lyle (collectively “Petitioners”) seek a writ of prohibition to prevent the circuit court from 

enforcing the part of its order finding that Mr. Bailey could maintain 42 U.S.C. § 1983

claims against both MFCU and Mr. Lyle. They further seek to prevent the circuit court 

from allowing Mr. Bailey to go forward with a whistle-blower claim against Mr. Lyle. We 

grant the requested writ of prohibition. MFCU, a state agency, and Mr. Lyle in his official 

capacity, may not be subjected to § 1983 claims. Furthermore, Mr. Bailey’s whistle-blower 

claim is unsustainable because Mr. Lyle had no authority to make decisions affecting Mr. 

Bailey’s employment and, therefore, was not his employer.

In case number 22-781, Petitioners appeal the circuit court’s decision 

denying them qualified immunity from Mr. Bailey’s § 1983 claims for unreasonable 

seizure of the person against Mr. Lyle. These claims are based on two grounds: (1) an 

alleged violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966); and (2) Mr. Bailey’s potential loss of liberty from an allegedly false report Mr. 

Lyle submitted to the Cabell County prosecuting attorney. Petitioners also appeal the 

circuit court’s rulings denying them qualified and prosecutorial immunity from Mr. 
2

Bailey’s claim of malicious prosecution. A § 1983 claim may not, as a matter of law, be 

founded on a Miranda violation, and the mere risk of a loss of liberty is insufficient to 

establish seizure of the person. Therefore, Mr. Lyle is entitled to qualified immunity from 

Mr. Bailey’s § 1983 claims, and the circuit court erred by concluding otherwise. As to Mr. 

Bailey’s malicious prosecution claim, we find that the complaint fails to allege sufficient 

facts to meet the required heightened pleading standard to overcome MFCU’s and Mr. 

Lyle’s qualified immunity, and the circuit court additionally failed to address whether Mr. 

Lyle was acting within the scope of his employment—an analysis necessary to determine

MFCU’s entitlement to qualified immunity for any vicarious liability for Mr. Lyle’s alleged 

conduct. Therefore, additional proceedings before the circuit court are required. Finally, 

the circuit court correctly found Petitioners are not entitled to prosecutorial immunity. The 

circuit court’s order is affirmed in part, and reversed in part, and this case is remanded for 

additional proceedings consistent with this opinion.

I.

FACTUAL AND PROCEDURAL HISTORY1

Mr. Bailey is a registered nurse. At the time of the incident underlying these 

proceedings, he had been employed by Mildred Mitchell-Bateman Hospital (“MMBH”) 

1 These facts merely recite what Mr. Bailey has alleged in his complaint. 

Given that this case is at the Rule of Civil Procedure 12(b)(6) dismissal stage, and the 

litigation below is ongoing, we do not resolve any disputed facts. It is well established that, 

at this stage, the Court must take all allegations in the complaint as true.
3

for about six years.

2 MMBH is a psychiatric facility operated by the West Virginia

Department of Health and Human Resources (“DHHR”).

Mr. Bailey alleges that on January 7, 2019, he and Krista Menchaca, a health 

services worker, were walking a group of MMBH patients to the cafeteria for dinner. 

Among them was M.C., a long-term patient of MMBH who had a known history of selfharm and self-mutilation, which Mr. Bailey had witnessed at times. On the way to the 

cafeteria, M.C. expressed a desire to beat and kill his mother.3 He resisted attempts by Mr. 

Bailey and Ms. Menchaca to redirect his attention. M.C.’s conduct escalated, and he 

punched a wall causing his knuckles to bleed. Expressing pleasure at the sight of his own 

blood, M.C. threatened to bite himself and raised his arm toward his mouth. Mr. Bailey

tried to keep M.C. from biting himself, and a struggle ensued. M.C. has an unsteady gate 

due to cerebral palsy, so both men fell to the floor where M.C. bit, struck, and kicked Mr. 

Bailey, and forcefully grabbed his testicles. Ms. Menchaca called for assistance, and four 

other MMBH employees arrived and gained control over M.C. Mr. Bailey then escorted 

M.C. back to his unit at MMBH where staff examined MC, found a small bump and small 

cut over his eyebrow, and placed a bandage on the cut.

2 According to Mr. Bailey, he had consistently received good performance 

reviews by MMBH and had no history of discipline.

3 Mr. Bailey describes M.C. as an “Intellectual Development Disorder” 

patient.
4

On January 11, 2019, Michelle Woomer, an employee of Legal Aid of West 

Virginia (“LAWV”), was making rounds at MMBH and observed bruising around M.C.’s 

eye. She asked M.C. about the bruise. He first stated that Mr. Bailey had thrown him against 

a wall and banged his head during the January 7 event. Later, M.C. described that Mr. 

Bailey threw him to the floor and banged his head during the episode. M.C. also explained 

that the incident was witnessed by another patient, L.M. Ms. Woomer conducted an initial 

investigation of the event, which Mr. Bailey claims was unauthorized insofar as Ms. 

Woomer had not yet been officially assigned to investigate. As part of her initial 

investigation, Ms. Woomer read the nursing notes, including a report by Mr. Bailey, and 

viewed a security video of the struggle, which is of poor quality4 and has no sound. John 

Koeber and Olivia Shields, employees of MMBH; MMBH CEO Craig Richards; and 

LAWV employee Teri Stone also viewed the video footage. Ms. Woomer then filed a 

referral with Adult Protective Services.5

Separately, MMBH Director of Nursing, Cheryl Williams, filed a patient 

grievance form on behalf of M.C. As a result, Mr. Richards assigned Ms. Woomer and Ms. 

4 Mr. Bailey explains that the video skips seconds at a time and people appear 

to move in a “stop-and-go manner.”

5 Mr. Bailey’s complaint avers, at paragraph 47, that there is no evidence that 

Adult Protective Services (“APS”) ever investigated the incident; however, his complaint 

also states, at paragraph 177, that around August 6, 2019, he received a letter from APS 

reflecting that they had “concluded their investigation and exonerate[ed] him of any 

physical abuse related to the incident of January 7, 2019.”
5

Shields to investigate the incident. By letter dated January 17, 2019, MMBH advised Mr. 

Bailey that his employment was suspended pending an official investigation of the January 

7 incident. The investigation consisted of Ms. Woomer and Ms. Shields viewing the 

security video and interviewing M.C. and Ms. Menchaca. The interview of M.C. was not 

recorded. Neither Mr. Bailey nor patient L.M. were interviewed. Ten other people visible 

in the security video also were not interviewed. Based upon the official investigation, Ms. 

Woomer’s subsequent report concluded that the allegations of physical abuse against Mr. 

Bailey were substantiated. The report failed to relate M.C.’s history of self-harm and selfmutilation, or that the incident began when M.C. punched a wall and attempted to bite 

himself.

Around March 6, 2019, a predetermination conference was held.

6 Although 

Mr. Richards did not personally attend the conference, he recommended to DHHR that Mr. 

Bailey’s employment be terminated, and DHHR approved the recommendation. In a letter 

dated March 11, 2019, Mr. Richards advised Mr. Bailey that his employment with MMBH 

was terminated due to his physical abuse of a patient. Mr. Bailey then filed a grievance 

with the West Virginia Public Employees Grievance Board (“Grievance Board”). On April 

6 We presume this was a predetermination conference pursuant to the 

Administrative Rules of the West Virginia Division of Personnel. See W. Va. Code St. R. 

§ 143-1-12.2.a.1 (requiring an appointing authority or its designee to “meet with the 

employee in a predetermination conference and advise the employee of the contemplated 

dismissal”).
6

18, 2019, Mr. Bailey received notice that Ms. Shields had filed a complaint against him 

with the West Virginia Board of Nursing, triggering proceedings against his nursing 

license,

7 and he also received a notice from the West Virginia Department of Personnel in 

July 2019 that he was no longer eligible for potential public employment in the State of 

West Virginia.

Mr. Bailey proceeded through the grievance process to a level three hearing

before an administrative law judge,

8 held on June 10 and 17 of 2019. On November 19, 

2019, the Grievance Board issued its decision that reinstated Mr. Bailey to his position at

MMBH with back pay, interest, and restoration of all benefits. The Grievance Board also 

directed that the January 7 incident be removed from Mr. Bailey’s personnel file as though 

it never occurred. MMBH did not appeal the Grievance Board’s final ruling.

Meanwhile, Mr. Richards, Ms. Shields, MMBH, and Ms. Woomer and/or 

LAWV made a report to MFCU, causing it to investigate the January 7 incident. By letter 

7 In April 2021, the Board of Nursing notified Mr. Bailey that it had 

dismissed the complaint filed by Ms. Shields and would take no action against his nursing 

license.

8 The West Virginia Public Employee Grievance Procedure levels are set out 

at W. Va. Code § 6C-2-4. Level three, the final grievance procedure level, is a hearing 

before an administrative law judge. See W. Va. Code § 6C-2-4(c). A final decision by an 

administrative law judge is enforceable and appealable on certain grounds. See W. Va.

Code § 6C-2-5.
7

dated October 4, 2019, MFCU “demanded” that Mr. Bailey submit to a “custodial 

interrogation,” as characterized by Mr. Bailey. The “interrogation” occurred on December 

2, 2019, and was conducted by MFCU employees Nathan R. Lyle and Erin Young, and 

David Holtzapfel, a lawyer working for the West Virginia Attorney General’s Office. Mr. 

Bailey was not advised of his Miranda rights. Following the “interrogation,” Mr. Lyle

authored a report about the January 7, 2019 incident and concluded that Mr. Bailey had 

abused, assaulted, and battered M.C. Mr. Lyle referred the matter to the Cabell County 

Prosecuting Attorney’s Office. Mr. Bailey alleges that Mr. Lyle made the referral despite 

his knowledge that Mr. Bailey had been “exonerated” of any wrongdoing by the Grievance 

Board. The Prosecuting Attorney’s Office filed criminal charges against Mr. Bailey, and a 

magistrate found probable cause to believe that Mr. Bailey had committed the offenses.

9

As a result of these events, immediately after the Grievance Board reinstated Mr. Bailey to 

his position, MMBH suspended him because the criminal complaint had been filed 

involving the same, January 7, incident. On March 2 2021, the Cabell County Prosecuting 

Attorney dismissed all charges against Mr. Bailey, without prejudice.

10

9 Mr. Bailey’s complaint does not specify what the charges were, but the 

appendix record reflects that Mr. Bailey was charged with misdemeanor assault, two counts 

of misdemeanor abuse or neglect of an incapacitated adult, and misdemeanor battery.

10 While the charges were dismissed without prejudice, the circuit court 

found that the statute of limitations for the charges had since expired, which rendered the 

dismissal final.
8

On February 25, 2022, Mr. Bailey filed a civil complaint against DHHR, 

MMBH, Ms. Shields, Mr. Richards, MFCU, Mr. Lyle, Ms. Woomer, Ms. Stone, and 

LAWV in the Circuit Court of Kanawha County. Pertinent to this appeal, Mr. Bailey 

asserted civil rights violations pursuant to 42 U.S.C. § 1983 based on unreasonable and 

unlawful seizure of the person, malicious prosecution, and violation of the Whistle-Blower 

Law, West Virginia Code §§ 6C-1-1 to -8. MFCU and Mr. Lyle filed a motion to dismiss 

pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, asserting qualified 

immunity, absolute prosecutorial immunity, and challenging Mr. Bailey’s claims. The 

circuit court denied the motion, and Petitioners filed a petition for writ of prohibition, 

assigned number 22-779 by this Court, in which they claim the circuit court exceeded its 

legitimate powers by denying their motion to dismiss with respect to Mr. Bailey’s § 1983

and whistle-blower claims. MFCU and Mr. Lyle filed a separate petition for appeal, 

assigned number 22-781 by this Court, in which they sought review of the circuit court’s 

denial of their motion to dismiss based upon their claims of immunity from Mr. Bailey’s 

§ 1983 and malicious prosecution claims. We consolidated these two proceedings for 

purposes of oral argument, consideration, and decision.

II.

PETITION FOR WRIT OF PROHIBITION

Before discussing the merits of Petitioners’ arguments in case 22-779, we 

review the applicable standard for issuing a writ of prohibition. We separately address 
9

whether the circuit court should be prohibited from enforcing its order denying Petitioners’ 

motion to dismiss regarding Mr. Bailey’s § 1983 claims and his whistle-blower claim.

A. Standard for Issuance of Writ

Petitioners invoke this Court’s original jurisdiction in prohibition claiming 

that the circuit court erred and exceeded its legitimate powers by denying their motion to 

dismiss Mr. Bailey’s § 1983 and whistle-blower claims. See Syl. pt. 2, State ex rel. Peacher 

v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977) (“A writ of prohibition will not 

issue to prevent a simple abuse of discretion by a trial court. It will only issue where the 

trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. 

W. Va. Code, 53-1-1.”). Notably, “when a motion to dismiss has been denied by a circuit 

court, a party may seek relief through a petition for a writ of prohibition.” State ex rel. 

Devono v. Wilmoth, 248 W. Va. 654, ___, 889 S.E.2d 736, 742 (2023). See also State ex 

rel. Skyline Corp. v. Sweeney, 233 W. Va. 37, 40, 754 S.E.2d 723, 726 (2014) (“When the 

request for extraordinary relief concerns a circuit court’s denial of a motion to dismiss, we 

consider the matter as a petition for a writ of prohibition.”).

The standard applied in this case, where Petitioners contend that the circuit 

court exceeded its legitimate powers, is well established.

In determining whether to entertain and issue the writ of 

prohibition for cases not involving an absence of jurisdiction 

but only where it is claimed that the lower tribunal exceeded 
10

its legitimate powers, this Court will examine five factors: 

(1) whether the party seeking the writ has no other adequate 

means, such as direct appeal, to obtain the desired relief; 

(2) whether the petitioner will be damaged or prejudiced in a 

way that is not correctable on appeal; (3) whether the lower 

tribunal’s order is clearly erroneous as a matter of law; 

(4) whether the lower tribunal’s order is an oft repeated error 

or manifests persistent disregard for either procedural or 

substantive law; and (5) whether the lower tribunal’s order 

raises new and important problems or issues of law of first 

impression. These factors are general guidelines that serve as a 

useful starting point for determining whether a discretionary 

writ of prohibition should issue. Although all five factors need 

not be satisfied, it is clear that the third factor, the existence of 

clear error as a matter of law, should be given substantial 

weight.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).11 Finally, 

we note that,

[w]here prohibition is sought to restrain a trial court 

from the abuse of its legitimate powers, rather than to challenge 

its jurisdiction, the appellate court will review each case on its 

own particular facts to determine whether a remedy by appeal 

is both available and adequate, and only if the appellate court 

determines that the abuse of powers is so flagrant and violative 

of petitioner’s rights as to make a remedy by appeal 

inadequate, will a writ of prohibition issue.

Syl. pt. 2, Woodall v. Laurita, 156 W. Va. 707, 195 S.E.2d 717 (1973). 

11 As a preliminary matter, Mr. Bailey argues that Petitioners have failed to 

meet the standard for the issuance of a writ of prohibition. He reasons that because the 

Hoover factors are joined with the conjunction “and,” they all are required but have not 

been met by Petitioners. This argument ignores the plain language of Hoover, which 

expressly states that “all five factors need not be satisfied.” Syl. pt. 4, in part, State ex rel. 

Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). Therefore, we find Mr. Bailey’s

argument unpersuasive.
11

B. Discussion

1. § 1983 Claims Against MFCU and Mr. Lyle. 42 U.S.C. § 1983 “creates 

a remedy for violation of federal rights committed by persons acting under color of state 

law.” State v. Chase Sec., Inc., 188 W. Va. 356, 359, 424 S.E.2d 591, 594 (1992)

(commenting that “litigation directed at state officials is most frequently brought pursuant 

to 42 U.S.C. § 1983”). Petitioners sought dismissal of Mr. Bailey’s § 1983 claims against 

them, asserting that neither is a “person” under 42 U.S.C. § 1983. The circuit court denied 

the motion.

Before this Court, Petitioners first argue that the circuit court committed clear 

legal error and exceeded the scope of its authority by finding that Mr. Bailey’s § 1983

claims could be maintained against a state agency and an employee of a state agency who 

was acting in his official capacity.

There are two elements to a § 1983 claim: “‘[A] plaintiff must allege the 

violation of a right secured by the Constitution and laws of the United States, and must 

show that the alleged deprivation was committed by a person acting under color of state 

law.’” Crosby v. City of Gastonia, 635 F.3d 634, 639 (4th Cir. 2011) (emphasis added)

(quoting West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55, 101 L. Ed. 2d 40 

(1988)). This Court has similarly held that, 
12

[b]ecause Title 42, U.S.C.A. § 1983 (1979) does not 

create substantive rights, but rather provides a remedy for preexisting rights, all claims under this section must allege a 

specific violation of the constitution or “laws” of the United 

States. [To] recover damages under § 1983, a plaintiff must 

show that (1) the conduct complained of was committed by a 

person acting under color of state law; and (2) [the] conduct 

deprived a person of rights, privileges or immunities secured 

by the Constitution or laws of the United States.

Syl. pt. 4, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996)

(emphasis added). Thus, “a claim can only be brought against a ‘person’ under 42 U.S.C. 

§ 1983.” State ex rel. W. Va. Div. of Corr. & Rehab. v. Ferguson, 248 W. Va. 471, ___ 

n.11, 889 S.E.2d 44, 55 n.11 (2023). In Will v. Michigan Department of State Police, 491 

U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989), the Supreme Court of the United States 

expressly held that “neither a State nor its officials acting in their official capacities are 

‘persons’ under § 1983.” Id. at 71, 109 S. Ct. at 2312, 105 L. Ed. 2d 45.

In denying the motion to dismiss Mr. Bailey’s § 1983 claims against MFCU, 

the circuit court reasoned that “[w]hile Defendant MFCU may not be a ‘person,’ it is 

vicariously liable for the acts or omissions of its employee, Defendant Lyle.” The circuit 

court relied generally on West Virginia Regional Jail and Correctional Facility Authority

v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014), but it failed to analyze the opinion’s 

relevance to a § 1983 claim. Had the court done so, the inapplicability of A.B. to § 1983 

claims would have been apparent. In fact, the A.B. Court made clear that the complaint 

“expressly asserted” that the plaintiff was “making no claims against the [defendant state 
13

agency] under Section 1983.” A.B., 234 W. Va. at 499, 766 S.E.2d at 758 (emphasis added). 

Contrary to the circuit court’s conclusion, A.B. does not stand for the proposition that a 

government agency may, in a § 1983 action, be held vicariously liable for the acts or 

omissions of its employee.

The United States Supreme Court has plainly declared that “vicarious 

liability is inapplicable to . . . § 1983 suits[;] . . . the plaintiff in [such] a suit . . . must plead 

that each Government-official defendant, through his own individual actions, has violated 

the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 1940, 173 

L. Ed. 2d 868 (2009) (citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 

691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978)).

Because Mr. Bailey’s § 1983 claims against MFCU are not sustainable as it 

is not a person, and MFCU cannot be vicariously liable for Mr. Lyle’s alleged violations 

of § 1983, Mr. Bailey can prove no set of facts that would entitle him to relief from MFCU 

under § 1983 and dismissal of those claims was proper. See Syl. pt. 3, Chapman v. Kane 

Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977) (“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.”). The circuit court plainly erred by denying 
14

Petitioners’ motion to dismiss Mr. Bailey’s § 1983 claims against MFCU and Petitioners 

are entitled to a writ prohibiting the circuit court from allowing these claims to proceed.

Petitioners also sought dismissal of the § 1983 claims against Mr. Lyle, 

arguing that he was improperly sued in his official capacity and, therefore, also is not a 

“person” for § 1983 purposes. Mr. Bailey responds that he did not sue Mr. Lyle only in his 

official capacity, but also sued him in his individual capacity. In denying Petitioners’

motion to dismiss the § 1983 claims as to Mr. Lyle, the circuit court reasoned that the 

question of whether Mr. Lyle was acting in his official capacity was “a question of fact and 

cannot be the subject of a Motion to Dismiss.” However, to the extent that Mr. Bailey 

asserted § 1983 claims against Mr. Lyle in his official capacity, the claims should have 

been dismissed. 

[S]tate officials literally are persons. But a suit against a state 

official in his or her official capacity is not a suit against the 

official but rather is a suit against the official’s office. . . . As 

such, it is no different from a suit against the State itself.

Will, 491 U.S. at 71, 109 S. Ct. at 2312, 105 L. Ed. 2d 45 (citing Brandon v. Holt, 469 U.S. 

464, 471, 105 S. Ct. 873, 877, 83 L. Ed. 2d 878 (1985). Instead,

[a] government-official defendant can be held liable 

only for his or her own misconduct. Therefore, to succeed on a 

claim of an alleged constitutional violation under United States 

Code title 42, section 1983, a plaintiff must prove that each 

government-official defendant, through that official’s own 

individual actions, has personally and directly violated the 

Constitution, and that such violation caused or contributed to 

the plaintiff’s injuries.
15

Syl. pt. 3, Vinson v. Butcher, 244 W. Va. 144, 851 S.E.2d 807 (2020). Accordingly, Mr. 

Bailey can prove no set of facts that would entitle him to relief from Mr. Lyle acting in his 

official capacity pursuant to § 1983 and the circuit court should have dismissed those 

claims. See Syl. pt. 3, Chapman, 160 W. Va. 530, 236 S.E.2d 207. Therefore, Petitioners 

are also entitled to the requested writ of prohibition relating to Mr. Bailey’s § 1983 claims

against Mr. Lyle in his official capacity. We need not address whether Mr. Bailey properly 

asserted § 1983 claims against Mr. Lyle in his individual capacity, because, as we explain 

more thoroughly below in our discussion of Petitioners’ appeal in number 22-781, Mr. Lyle 

is entitled to qualified immunity for those claims as a matter of law.

2. Whistle-Blower Claim Against Mr. Lyle. In denying Petitioners’ motion 

to dismiss, the circuit court determined that Mr. Bailey could assert a claim against Mr. 

Lyle under the Whistle-Blower Law, W. Va. Code §§ 6C-1-1 to -8, even though Mr. Lyle

and Mr. Bailey worked for different state agencies. In reaching this conclusion, the circuit 

court relied upon the definition of the term “employer” in the Whistle-Blower Law.

The Whistle-Blower Law prohibits an employer from making certain adverse 

employment changes in retaliation for an employee’s protected conduct. According to the 

Whistle-Blower Law,

(a) No employer may discharge, threaten, or otherwise 

discriminate or retaliate against an employee by changing the 

employee’s compensation, terms, conditions, location, or 
16

privileges of employment because the employee, acting on his 

or her own volition, or a person acting on behalf of or under 

the direction of the employee, makes a good faith report, or is 

about to report, verbally or in writing, to the employer or 

appropriate authority, an instance of wrongdoing or waste.

(b) No employer may discharge, threaten, or otherwise 

discriminate or retaliate against an employee by changing the 

employee’s compensation, terms, conditions, location, or 

privileges of employment because the employee is requested or 

subpoenaed by an appropriate authority to participate in an 

investigation, hearing, or inquiry held by an appropriate 

authority or in a court action.

(c) No employer may deny a whistle-blower covered by 

the civil service system, because of his or her status or actions 

as a whistle-blower, a promotion or other increase in 

compensation that the whistle-blower otherwise would have 

received.

W. Va. Code § 6C-1-3 (eff. 2020) (emphasis added).12 As used in this statute, the term 

“‘employer’ means a person supervising one or more employees, including the employee 

in question, a superior of that supervisor, or an agent of a public body.” W. Va. Code § 6C1-2(c) (eff. 1988).

In seeking dismissal of this claim, Petitioners argued that Mr. Lyle was not 

Mr. Bailey’s employer and, therefore, could not properly be the subject of Mr. Bailey’s 

whistle-blower claim. The circuit court disagreed and found that Mr. Lyle fell within the 

12 The version of this statute in effect at the time relevant to Mr. Bailey’s 

claim was enacted in 1988; however, because the newer version contains the same pertinent 

language, we refer to it in our analysis. 
17

Whistle-Blower Law’s definition of “employer” because he was “an agent of a public 

body,” i.e., MFCU. W. Va. Code § 6C-1-2(c). Petitioners contend this conclusion was in 

error, because Mr. Lyle was not Mr. Bailey’s employer. Mr. Bailey argues, without 

authority, that the circuit court correctly denied Mr. Lyle’s motion to dismiss the whistleblower claim, because Mr. Lyle was a state employee who acted in concert with hospital 

employee/defendants Ms. Shields, who was Mr. Bailey’s supervisor at MMBH, and Mr. 

Richards, MMBH’s CEO. Echoing the circuit court’s findings, Mr. Bailey also contends 

that Mr. Lyle satisfies the whistle-blower definition of employer because he is an “agent 

of a public body.” Id. Mr. Bailey reasons that the Whistle-Blower Law is designed to 

protect state employees and should be liberally construed.

Our resolution of this issue requires us to analyze the Whistle-Blower Law.

“‘Interpreting a statute . . . presents a purely legal question subject to de novo review.’” 

Syl. pt. 2, Freeland v. Marshall, No. 22-0109, ___ W. Va. ___, ___ S.E.2d ___, 2023 WL 

6804937 (W. Va. Oct. 16, 2023) (quoting Syl. pt. 1, in part, Appalachian Power Co. v. 

State Tax Dep’t, 195 W. Va. 573, 466 S.E.2d 424 (1995).” Importantly, “[t]he primary 

object in construing a statute is to ascertain and give effect to the intent of the Legislature.” 

Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 

(1975). Obviously, “[a] statute that is ambiguous must be construed before it can be 

applied.” Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992). However, 

“[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute 
18

should not be interpreted by the courts, and in such case it is the duty of the courts not to 

construe but to apply the statute.” Syl. pt. 5, State v. Gen. Daniel Morgan Post No. 548, 

Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).

We find the definition of “employer” as used in the Whistle-Blower Law to 

be ambiguous in its reference to “an agent of a public body.” W. Va. Code § 6C-1-2(c). A 

literal application of this phrase would mean that any agent of a public body may be liable 

under the Whistle-Blower Law, even when the agent works for a completely separate 

agency from the aggrieved employee and has no supervisory authority over that employee. 

We do not believe such an outcome corresponds with the legislative intent for the WhistleBlower Law. See Hutchison, 198 W. Va. at 150, 479 S.E.2d at 660 (recognizing that “one 

of the foremost canons of statutory construction states: ‘The plain meaning of legislation 

should be conclusive, except in the rare cases in which the literal application of a statute 

will produce a result demonstrably at odds with the intentions of the drafters.’” (emphasis 

added) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S. Ct. 1026, 

1031, 103 L Ed. 2d 290 (1989))).

First, the definition of employer specifically lists persons who have 

supervisory authority over the employee making a whistle-blower claim: “a person 

supervising one or more employees, including the employee in question, a superior of that 

supervisor . . . .” W. Va. Code § 6C-1-2 (c). It stands to reason that the inclusion of “an 
19

agent of a public body” at the end of this list is intended by the Legislature to also be 

someone with supervisory authority over the subject employee. See Syl. pt. 4, Wolfe v. 

Forbes, 159 W. Va. 34, 217 S.E.2d 899 (1975) (“It is a fundamental rule of construction 

that, in accordance with the maxim noscitur a sociis, the meaning of a word or phrase may 

be ascertained by reference to the meaning of other words or phrases with which it is 

associated. Language, although apparently general, may be limited in its operation or effect 

where it may be gathered from the intent and purpose of the statute that it was designed to 

apply only to certain persons or things, or was to operate only under certain conditions.”).

Further evidence of the intended meaning of “employer” may be gleaned 

from the type of conduct prohibited by the Whistle-Blower Law. See Syl. pt. 1, State ex 

rel. Hall v. Schlaegel, 202 W. Va. 93, 502 S.E.2d 190 (1998) (“Statutes which relate to the 

same subject matter should be read and applied together so that the Legislature’s intention 

can be gathered from the whole of the enactments.” (quotations and citation omitted)).” 

Under its plain language“[n]o employer may discharge, threaten, or otherwise discriminate 

or retaliate against an employee by changing the employee’s compensation, terms, 

conditions, location, or privileges of employment,” based upon the employee’s protected 

activity. W. Va. Code § 6C-1-3(a) & (b) (emphasis added). Thus, the prohibited conduct 

plainly refers to changes that could only be made by someone with supervisory authority, 

or perhaps administrative authority, i.e., a superior of the supervisor as included in the 

definition of employer. The language “an agent of a public body,” simply is not intended 
20

to refer broadly to employees of other state agencies that have no such supervisory 

authority. W. Va. Code § 6C-1-2(c). Viewed properly, it identifies someone who may not 

technically be a supervisor, but who, through some agency relationship, has obtained 

supervisory authority over the subject employee.

The absence of supervisory authority was a factor considered by this Court 

in State ex rel. Grant County Commission v. Nelson, 244 W. Va. 649, 856 S.E.2d 608 

(2021), when it concluded that a county commission was not liable for a whistle-blower 

claim by an employee of a hospital it owned. The Nelson Court explained that, although 

the county commission owned the hospital, its administration and management authority, 

including the power to make employment decisions, was held by the hospital board of 

trustees. For this reason, the Nelson Court concluded that the county commission was not 

the employer of hospital employees, 

the Commission has no authority to make decisions regarding 

the Hospital’s employees and, thus, is not the [plaintiff’s] 

employer . . . . Therefore, for purposes of the Whistle-Blower 

Law and the Human Rights Act, we hold that a county 

commission, which owns a hospital pursuant to West Virginia 

Code section 7-3-14, is not the employer of individuals who 

work at the hospital. . . .

Nelson, 244 W. Va. at 656-57, 856 S.E.2d at 615-16 (footnote omitted). Applying this 

reasoning here, it is clear that Mr. Lyle, an MFCU employee, had no authority to make 

employment decisions affecting Mr. Bailey. Mr. Bailey has not alleged that Mr. Lyle had 

any authority to change his compensation, terms, conditions, location, or privileges of 
21

employment.13 Therefore, Mr. Bailey’s complaint has failed to assert a whistle-blower 

claim against Mr. Lyle upon which relief can be granted. See W. Va. R. Civ. P. 12(b)(6). 

See also Fass v. Nowsco Well Serv., Ltd., 177 W. Va. 50, 52, 350 S.E.2d 562, 563 (1986)

(stating that a “complaint must set forth enough information to outline the elements of a 

claim or permit inferences to be drawn that these elements exist”). The circuit court clearly 

erred in finding that Mr. Bailey sufficiently asserted a whistle-blower claim against Mr. 

Lyle; therefore, Mr. Lyle is entitled to the requested writ of prohibition on this ground. See

Syl. pt. 4, Hoover, 199 W. Va. 12, 483 S.E.2d 12.

Because we find that the circuit court committed clear error of law in failing 

to dismiss Mr. Bailey’s § 1983 claims against MFCU and Mr. Lyle in his official capacity, 

and Mr. Bailey’s whistle-blower claim against Mr. Lyle, we grant the requested writ of 

prohibition.

13 In his complaint, Mr. Bailey alleged, in pertinent part, that Mr. Lyle 

deliberately made false allegations against him and, while aided and abetted by other 

defendants who are not part of this appeal, conducted a flawed and fraudulent investigation 

into the false allegations, all as reprisal for Mr. Bailey’s testimony in another employee’s

grievance proceeding against MMBH. Mr. Bailey further alleged that, because of this 

wrongdoing, he suffered an adverse employment action, a bogus complaint against his 

nursing license, and was the subject of a bogus criminal complaint.
22

III.

APPEAL OF DENIAL OF IMMUNITY

On appeal in case number 22-781, Petitioners contend that the circuit court 

erred by finding they were not entitled to qualified immunity from Mr. Bailey’s § 1983

claims alleging violations of his right to be free from unreasonable seizures of the person 

and from Mr. Bailey’s state-law malicious prosecution claim. They additionally argue that

the circuit court erred in concluding that they were not entitled to prosecutorial immunity 

as to Mr. Bailey’s malicious prosecution claim. 

A. Standard of Review

The denial of a motion to dismiss is generally not immediately appealable;

however, we have held that “[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 Educ. v. Marple, 236 

W. Va. 654, 783 S.E.2d 75 (2015). We give plenary consideration to this appeal. See Syl. 

pt. 2, W. Va. Div. of Corr. & Rehab. v. Robbins, 248 W. Va. 515, 889 S.E.2d 88 (2023).

When conducting our review, we are mindful that “[t]he purpose of a Rule 12(b)(6) motion 

[to dismiss] ‘is to test the sufficiency of the complaint.’ Cantley v. Lincoln Cnty. Comm’n,

221 W. Va. 468, 470, 655 S.E.2d 490, 492 (2007) (per curiam).” WW Consultants, Inc. v. 

Pocahontas Cnty. Pub. Serv. Dist., 248 W. Va. 323, ___, 888 S.E.2d 823, 832-33 (2023). 

Furthermore,
23

[t]he circuit court, viewing all the facts in a light most favorable 

to the nonmoving party, may grant the motion only if “it 

appears beyond doubt that the plaintiff can prove no set of facts 

in support of his[, her, or its] claim which would entitle him[, 

her, or it] to relief.” Syl. pt. 3, in part, Chapman v. Kane 

Transfer Co., Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977)[.]

State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 776, 461 S.E.2d 

516, 522 (1995) (footnote omitted).

B. Discussion

1. Qualified Immunity From § 1983 Claims. We need not address MFCU’s 

entitlement to qualified immunity from Mr. Bailey’s § 1983 claims because we determined 

above that, as a matter of law, MFCU, a state agency, is not subject to a § 1983 suit. 

Accordingly, our discussion of qualified immunity from Mr. Bailey’s § 1983 claims pertain 

only to Mr. Lyle in his individual capacity. After reviewing the standards for qualified 

immunity under federal law, we consider Mr. Bailey’s claim based on Mr. Lyle’s failure 

to provide Miranda warnings.

14 We then address Mr. Bailey’s claim that he was placed at 

risk of losing his liberty due to Mr. Lyle’s allegedly false report.

14 “Law enforcement officers must provide Miranda warnings, pursuant to 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), when a person 

is in custody and is interrogated.” State v. Delorenzo, 247 W. Va. 707, 722, 885 S.E.2d 

645, 660 (2022).
24

a. Federal Qualified Immunity Standards. We apply federal immunity law 

in addressing this issue. See Ballard v. Delgado, 241 W. Va. 495, 504, 826 S.E.2d 620, 629 

(2019) (“[T]his Court’s ‘approach to matters concerning immunity historically has 

followed federal law . . . when . . . public officers are sued in state court for violations of 

federal civil rights pursuant to 42 U.S.C. § 1983.’ City of Saint Albans v. Botkins, 228 

W. Va. 393, 398, 719 S.E.2d 863, 868 (2011).”). The United States Supreme Court has 

explained that qualified immunity should be resolved at the earliest possible stage of 

litigation.

Because qualified immunity is “an immunity from suit 

rather than a mere defense to liability . . . it is effectively lost 

if a case is erroneously permitted to go to trial.” Mitchell v. 

Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 

L. Ed. 2d 411 (1985) (emphasis deleted). Indeed, we have 

made clear that the “driving force” behind creation of the 

qualified immunity doctrine was a desire to ensure that 

“‘insubstantial claims’ against government officials [will] be 

resolved prior to discovery.” Anderson v. Creighton, 483 U.S. 

635, 640, n.2, 107 S. Ct. 3034, [3039 n.2,] 97 L. Ed. 2d 523 

(1987). Accordingly, “we repeatedly have stressed the 

importance of resolving immunity questions at the earliest 

possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 

227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1991) (per 

curiam).

Pearson v. Callahan, 555 U.S. 223, 231-32, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009). 

We address two questions in analyzing federal qualified immunity:

First, a court must decide whether the facts that a plaintiff has 

alleged . . . or shown . . . make out a violation of a 

constitutional right. . . . Second, if the plaintiff has satisfied 

this first step, the court must decide whether the right at issue 
25

was “clearly established” at the time of defendant’s alleged 

misconduct.

Id. at 232, 129 S. Ct. at 815-16, 172 L. Ed. 2d 565 (2009) (quoting Saucier v. Katz, 533 

U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001)). Accord Robbins, 248 

W. Va. at ___, 889 S.E.2d at 97. While earlier opinions required these steps to be applied 

in order, the Pearson Court determined that flexibility was warranted, and the arrangement 

of the test should not be considered mandatory.

On reconsidering the procedure required in Saucier, we 

conclude that, while the sequence set forth there is often 

appropriate, it should no longer be regarded as mandatory. The 

judges of the district courts and the courts of appeals should be 

permitted to exercise their sound discretion in deciding which 

of the two prongs of the qualified immunity analysis should be 

addressed first in light of the circumstances in the particular 

case at hand.

Pearson, 555 U.S. at 236, 129 S. Ct. at 818, 172 L. Ed. 2d 565. Accord Robbins, 248 

W. Va. at ___ n.30, 889 S.E.2d at 97 n.30; Ballard, 241 W. Va. at 504 n.21, 826 S.E.2d at 

629 n.21.

b. § 1983 Claim Based on Miranda Violation. Mr. Bailey’s complaint 

alleges that Mr. Lyle violated Mr. Bailey’s “rights under the Fourth Amendment . . . to be 

free from unreasonable seizures of the person,” by conducting a custodial interrogation 

without advising him of his Miranda rights.
26

In denying Petitioners’ motion to dismiss on qualified immunity grounds, the 

circuit court found that Mr. Lyle “conducted a custodial interrogation without providing 

Plaintiff with his Miranda rights,” and summarily concluded that Mr. Lyle “has no 

immunity for such a violation” of Mr. Bailey’s “legal and constitutional rights.” Mr. Lyle 

contends that the circuit court’s ruling is erroneous, and he is entitled to qualified 

immunity, because Mr. Bailey failed to allege deprivation of a constitutional right that may 

be remedied in a § 1983 suit. We agree.

The United States Supreme Court has found a defendant was entitled to 

qualified immunity from a § 1983 claim based on a failure to read Miranda warnings to an 

arrestee, explaining:

Rules designed to safeguard a constitutional right, 

however, do not extend the scope of the constitutional right 

itself, just as violations of judicially crafted prophylactic rules 

do not violate the constitutional rights of any person. As we 

explained, we have allowed the Fifth Amendment privilege to 

be asserted by witnesses in noncriminal cases in order to 

safeguard the core constitutional right defined by the SelfIncrimination Clause—the right not to be compelled in any 

criminal case to be a witness against oneself. 

Chavez v. Martinez, 538 U.S. 760, 772, 123 S. Ct. 1994, 2003-04, 155 L. Ed. 2d 984 (2003) 

(reversing lower court’s denial of qualified immunity as to plaintiff’s Fifth Amendment 

claim because alleged conduct did not violate Self-Incrimination Clause). See also Vega v. 

Tekoh, 597 U.S. ___, ___, 142 S. Ct. 2095, 2108, 213 L. Ed. 2d 479 (2022) (concluding 
27

that “a violation of Miranda is not itself a violation of the Fifth Amendment” and there was 

“no justification for expanding Miranda to confer a right to sue under § 1983[.]”).15

Based on this well-established precedent, the failure to provide Miranda

rights is not a constitutional violation, and Mr. Bailey has failed to overcome qualified 

immunity because he failed to allege facts showing that Mr. Lyle’s conduct violated a 

constitutional right. See Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 

L. Ed. 2d 272 (2001) (establishing that qualified immunity may only be overcome if the 

facts alleged “show the officer’s conduct violated a constitutional right”).

c. § 1983 Claim Based on a Potential Loss of Liberty. Mr. Bailey 

additionally asserted that Mr. Lyle conducted a false investigation and produced a false 

report “in violation” of Mr. Bailey’s Fourth Amendment right “to be free from 

unreasonable seizures of the person.” Factually, this claim appears to be based on the 

allegation that Mr. Lyle’s purportedly false report caused Mr. Bailey to be the subject of a 

criminal investigation that “could lead to loss of his liberty.” Mr. Bailey additionally 

alleged that he “was forced to turn himself in,” but his complaint contains no facts 

indicating that he was arrested or taken into custody. 

15 Because we resolve this issue on the ground that the failure to provide 

Miranda warnings is not a constitutional violation actionable under § 1983, we do not 

address Mr. Bailey’s claim that Mr. Lyle conducted a custodial interrogation.
28

The United States Supreme Court has explained that “a person is ‘seized’

only when, by means of physical force or a show of authority, his freedom of movement is 

restrained. Only when such restraint is imposed is there any foundation whatever for 

invoking constitutional safeguards.” United States v. Mendenhall, 446 U.S. 544, 553, 100 

S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980). See also California v. Hodari D., 499 U.S. 621, 

626, 111 S. Ct. 1547, 1551, 113 L. Ed. 2d 690 (1991) (“An arrest requires either physical 

force . . . or, where that is absent, submission to the assertion of authority.”). Accordingly, 

the Mendenhall Court concluded that

a person has been “seized” within the meaning of the Fourth 

Amendment only if, in view of all of the circumstances 

surrounding the incident, a reasonable person would have 

believed that he was not free to leave. Examples of 

circumstances that might indicate a seizure, even where the 

person did not attempt to leave, would be the threatening 

presence of several officers, the display of a weapon by an 

officer, some physical touching of the person of the citizen, or 

the use of language or tone of voice indicating that compliance 

with the officer’s request might be compelled.

Mendenhall, 446 U.S. at 554-55, 100 S. Ct. at 1877, 64 L. Ed. 2d 497 (footnote omitted)

(concluding that, absent evidence of the type described, “otherwise inoffensive contact 

between a member of the public and the police cannot, as a matter of law, amount to a 

seizure of that person”). Mr. Bailey has alleged no facts to show that Mr. Lyle restrained 

Mr. Bailey’s freedom of movement by exerting “physical force or a show of authority.” Id.

at 553, 100 S. Ct. at 1877, 64 L. Ed. 2d 497. Although Mr. Bailey contends that he “was 

forced to turn himself in,” he fails to allege facts to describe the event or provide any 
29

context whatsoever. The bare allegation that Mr. Lyle’s report “could lead to loss of [Mr. 

Bailey’s] liberty” is patently insufficient to show a seizure. Cf. United States v. Ley, 876 

F.3d 103, 108 (3d Cir. 2017) (stating “[l]ike this Court, the First, Second, and Seventh 

Circuits have determined that a summons requiring the appearance in court does not 

amount to a Fourth Amendment seizure,” and collecting cases).

16 Mr. Bailey has failed to 

allege sufficient facts to show that Mr. Lyle’s investigation and report amounted to an 

unconstitutional seizure. Because the complaint fails to properly allege violation of a 

constitutional right, Mr. Lyle is entitled to qualified immunity, and the circuit court erred 

in finding otherwise.

2. State-Law Malicious Prosecution Claim.

17 We begin by discussing the 

standards for qualified immunity in West Virginia and then determine whether the circuit 

16 See also Bracken v. Manor Twp., No. 2:19cv185, 2023 WL 2664361, at 

*22 (W.D. Pa. Mar. 28, 2023) (“[T]o be sufficient to support a Fourth Amendment 

violation, a seizure must result in either pretrial custody or ‘some onerous types of pretrial, 

non-custodial restrictions.’ DiBella[ v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 

2005)]. And ‘[m]erely having to appear in court to answer charges does not qualify as a 

Fourth Amendment seizure.’ Roberts[ v. Caesar’s Ent., Inc., 72 F. Supp. 3d 575, 581-82

(E.D. Pa. 2014)]”).

17 During oral argument before this Court, Mr. Bailey’s counsel stated that 

Mr. Bailey has asserted malicious prosecution claims under state law as well as pursuant 

to § 1983. Because the circuit court addressed only Mr. Bailey’s state-law malicious 

prosecution claim and Petitioners similarly address only the state-law malicious 

prosecution claim on appeal, we do not consider whether Mr. Lyle is qualifiedly immune 

from any § 1983 claim for malicious prosecution alleged by Mr. Bailey.
30

court erred by finding Petitioners were not entitled to qualified immunity from Mr. Bailey’s 

malicious prosecution claim.

a. Principles of State Law Qualified Immunity. Like federal immunity, we 

have acknowledged that “[i]mmunities under West Virginia law are more than a defense 

to a suit in that they grant governmental bodies and public officials the right not to be 

subject to the burden of trial at all.” Hutchison, 198 W. Va. at 148, 479 S.E.2d at 658. “The 

policy considerations driving such a rule are straightforward: public servants exercising 

their official discretion in the discharge of their duties cannot live in constant fear of 

lawsuits, with the concomitant costs to the public servant and society.” Id. Thus, “[a] public 

official or State agency may claim to be qualifiedly immune from suit only when ‘the 

[governmental] acts or omissions which give rise to the suit . . . involve . . . discretionary 

governmental functions.’” Robbins, 248 W. Va. at ___, 889 S.E.2d at 97 (quoting Syl. pt. 

10, in part, A.B., 234 W. Va. 492, 766 S.E.2d 751). When discretionary acts are the basis 

for a claim of liability, qualified immunity applies unless clearly established and reasonably 

known rights or laws have been violated, or the subject conduct is fraudulent, malicious, 

or oppressive:

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 
31

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.

Syl. pt. 11, A.B., 234 W. Va. 492, 766 S.E.2d 751.18 Finally, a claim implicating qualified 

immunity must meet a heightened pleading standard. See Hutchison, 198 W. Va. at 149, 

479 S.E.2d at 659 (“We believe that in civil actions where immunities are implicated, the 

trial court must insist on heightened pleading by the plaintiff.”). However, the Hutchison

Court cautioned that “[a] plaintiff is not required to anticipate the defense of immunity in 

his complaint.” Id. at 150, 479 S.E.2d at 660 (citing Gomez v. Toledo, 446 U.S. 635, 640, 

100 S. Ct. 1920, 1923-24, 64 L. Ed. 2d 572 (1980)). Thus, when the pleadings are 

insufficient to overcome a defendant’s claim of governmental immunity, then, before 

making a dispositive ruling, the circuit court should first direct a plaintiff to file a short and 

plain statement of his complaint that rests on more than conclusions alone, pursuant to Rule 

12(e) of the West Virginia Rules of Civil Procedure. Id. The court may also require a

plaintiff to file a reply in accordance with Civil Procedure Rule 7(a) that is tailored to 

respond to the defendant’s assertion of statutory or qualified immunity. Id.

18 See also Syl. pt. 7, W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 

W. Va. 492, 766 S.E.2d 751 (2014) (“‘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).”).
32

b. Qualified Immunity for Malicious Prosecution.

19 To overcome 

Petitioners’ entitlement to qualified immunity, Mr. Bailey contends that the malicious 

prosecution was fraudulent, malicious, or oppressive. See Syl. pt. 11, in part, A.B., 234 

W. Va. 492, 766 S.E.2d 751 (holding, in relevant part, that qualified immunity may be 

overcome when governmental official’s discretionary functions are fraudulent, malicious, 

or oppressive).20 Petitioners argue that Mr. Bailey has failed to satisfy the heightened 

pleading standard required to overcome qualified immunity for this claim because he failed 

19 Mr. Bailey has asserted a direct claim for malicious prosecution against 

MFCU, a state agency. Therefore, in addressing this issue, we must assume that a state 

agency is capable of acting with the malice necessary to support the claim. But see Morton 

v. Chesapeake & Ohio Ry. Co., 184 W. Va. 64, 68, 399 S.E.2d 464, 468 (1990) (per curiam) 

(“Because a corporation does not exist as a living entity, the actions or omissions of its 

employees or agents can form the basis for a corporation’s liability [for malicious 

prosecution] under the doctrine of respondeat superior.”); Syl. pt. 1, Show v. Mount Vernon 

Farm Dairy Prods., 125 W. Va. 116, 23 S.E.2d 68 (1942) (“A corporation is liable for a 

malicious prosecution by its agent, acting within the scope of his employment and in 

furtherance of his company’s business, notwithstanding the company may not have 

expressly authorized or ratified his act.” (quotations and citations omitted)); Syl. pt. 1, 

Meadows v. Corinne Coal & Land Co., 115 W. Va. 522, 177 S.E. 281 (1934) (same); Syl. 

pt. 4, Lyons v. Davy-Pocahontas Coal Co., 75 W. Va. 739, 84 S.E. 744 (1915) (“A coal 

mining corporation is liable for a malicious prosecution procured to be made by its 

superintendent acting in furtherance of its business.”); Syl. pt. 1, Fetty v. Huntington Loan 

Co., 70 W. Va. 688, 74 S.E. 956 (1912) (“A corporation is liable for a malicious 

prosecution by its agent, acting within the scope of his employment and in furtherance of 

his company’s business, notwithstanding the company may not have expressly authorized 

or ratified his act.”). While we assume, for purposes of this interlocutory appeal addressing 

only Petitioners’ entitlement to qualified immunity, that a state agency may be directly 

liable for malicious prosecution, we make no such conclusion.

20 See also W. Va. Div. of Nat. Res. v. Dawson, 242 W. Va. 176, 190, 832 

S.E.2d 102, 116 (2019) (“[T]his Court has continually and consistently held that one way 

to defeat qualified immunity is by alleging that the acts or omissions of a public official or 

employee were fraudulent, malicious, or oppressive.”).
33

to plead sufficient facts supporting his allegation that their conduct was fraudulent and 

malicious. We agree. Mr. Bailey’s lengthy complaint is filled with conclusory statements 

about Petitioners’ actions being fraudulent, malicious, and oppressive in providing a 

“false” report to the to the Cabell County Prosecuting Attorney. The only arguably factual 

allegations to support those statements are that the report was submitted to the Cabell 

County Prosecutor after the Grievance Board had “cleared” Mr. Bailey, and that Mr. Lyle 

knew or should have known of the Grievance Board’s decision. The complaint is devoid 

of any specific facts regarding Mr. Lyle’s investigation or the resulting report and any 

factual basis for Mr. Lyle’s alleged knowledge of the unreliability of the investigation 

performed by defendants Woomer and LAWV. 

Because Mr. Bailey’s complaint failed to adequately allege facts supporting 

his malicious prosecution claim against Petitioners, the circuit court should order Mr. 

Bailey to file a short and plain statement of his complaint that rests on more than 

conclusions and may insist on a reply tailored to respond to Petitioners’ assertion of 

qualified immunity with respect to his claim of malicious prosecution. See Hutchison, 198 

W. Va. at 150, 479 S.E.2d at 660 (commenting that, when immunities are implicated “the 

trial court should first demand that a plaintiff file . . . ‘a short and plain statement of his 

complaint . . . that rests on more than conclusion alone,’” and encouraging the circuit court 

to “insist that the plaintiff file a reply tailored to an answer pleading the defense of statutory 

or qualified immunity” (quoting Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.1995)).
34

Furthermore, this Court has held that,

[i]f the plaintiff identifies a clearly established right or 

law which has been violated by the acts or omissions of the 

State, its agencies, officials, or employees, or can otherwise 

identify fraudulent, malicious, or oppressive acts committed by 

such official or employee, the court must determine whether 

such acts or omissions were within the scope of the public 

official or employee’s duties, authority, and/or employment. 

To the extent that such official or employee is determined to 

have been acting outside of the scope of his duties, authority, 

and/or employment, the State and/or its agencies are immune 

from vicarious liability, but the public employee or official is 

not entitled to immunity in accordance with State v. Chase 

Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992) and its 

progeny. If the public official or employee was acting within 

the scope of his duties, authority, and/or employment, the State 

and/or its agencies may be held liable for such acts or 

omissions under the doctrine of respondeat superior along 

with the public official or employee.”

Syl. pt. 12, A.B., 234 W. Va. 492, 766 S.E.2d 751 (emphasis added). In ruling on 

Petitioners’ qualified immunity from Mr. Bailey’s malicious prosecution claim, the circuit 

court erroneously failed to analyze whether Mr. Lyle was acting within the scope of his 

employment. Such an analysis must be conducted to determine whether MFCU is immune 

from vicarious liability for Mr. Lyle’s conduct. 

As explained above, we find the circuit court erred in its ruling addressing 

Petitioners’ assertion of qualified immunity from Mr. Bailey’s claim for malicious 

prosecution. We reverse the circuit court’s qualified immunity ruling on this issue and 

remand with directions that the circuit court require Mr. Bailey to file a short and plain 
35

statement of his complaint that rests on more than conclusions, or submit a reply tailored 

to respond to Petitioners’ assertion of qualified immunity. We further instruct the court to 

determine whether MFCU is entitled to qualified immunity from vicarious liability for Mr. 

Lyle’s alleged malicious prosecution.

3. Prosecutorial Immunity From State Law Malicious Prosecution 

Claim. As their last assignment of error, Petitioners contend that the circuit court erred by 

failing to dismiss Mr. Bailey’s malicious prosecution claim based on prosecutorial 

immunity. They reason that the circuit court’s finding that they procured Mr. Bailey’s 

prosecution required a corresponding finding that they acted as prosecutors and are, 

therefore, entitled to prosecutorial immunity. This argument misconstrues prosecutorial 

immunity and adopting Petitioners’ position would abolish malicious prosecution because

procurement is one of its elements and, under Petitioners’ theory, a finding of procurement 

would always entitle an actor to absolute prosecutorial immunity.

Prosecutorial immunity is absolute immunity afforded to prosecutors when 

they are engaged in functions associated with the judicial process:

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 
36

defendant ultimately prevailed on appeal or in a habeas corpus 

proceeding.

Louis J. Palmer, Jr. & Robin J. Davis, Litig. Handbook on W. Va. Rules of Civ. Proc., 

§ 8(c), at 243-44 (5th ed. 2017) (footnotes omitted). This absolute immunity attaches only 

to prosecutors’ functions related to the judicial process. When claims involve a 

prosecutor’s functions that are not closely tied to the judicial process, such as their 

investigatory or administrative functions, they are entitled only to qualified, not absolute, 

immunity. See id. at 244 (“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.” (footnote omitted)). Accord Jarvis v. W. Va.

State Police, 227 W. Va. 472, 478 n.5, 711 S.E.2d 542, 548 n.5 (2010); Mooney v. Frazier, 

225 W. Va. 358, 370 n.12, 693 S.E.2d 333, 345 n.12 (2010). See also Dababnah v. KellerBurnside, 208 F.3d 467, 470 (4th Cir. 2000) (“A prosecutor enjoys absolute immunity for 

prosecutorial functions ‘intimately associated with the judicial phase of the criminal 

process.’ Imbler v. Pachtman, 424 U.S. 409, 430, 96 S. Ct. 984, 995, 47 L. Ed. 2d 128 

(1976).”).21

21 Stated another way,

[t]o determine whether an act is so “intimately” associated with 

the judicial phase that it warrants absolute immunity, courts 

take a “functional approach,” Buckley v. Fitzsimmons, 509 U.S. 

259, 269, 113 S. Ct. 2606, [2613,] 125 L. Ed. 2d 209 (1993), 

looking to the “nature of the function performed” and not the 
37

Prosecutors have been afforded absolute immunity for their functions 

connected to the judicial phase of criminal proceedings,

because, among other things, suits against prosecutors for 

initiating and conducting prosecutions “could be expected with 

some frequency, for a defendant often will transform his 

resentment at being prosecuted into the ascription of improper 

and malicious actions to the State’s advocate,” [Imbler v. 

Pachtman, 424 U.S. 409, 425, 96 S. Ct. 984, 992, 47 L. Ed. 2d

128 (1976)]; lawsuits would divert prosecutors’ attention and 

energy away from their important duty of enforcing the 

criminal law, ibid.; prosecutors would have more difficulty 

than other officials in meeting the standards for qualified 

immunity, ibid.; and potential liability “would prevent the 

vigorous and fearless performance of the prosecutor’s duty that 

is essential to the proper functioning of the criminal justice 

system,” id., at 427-428[, 96 S. Ct. at 993-94, 47 L. Ed. 2d 

128]. The Court also noted that there are other checks on 

prosecutorial misconduct, including the criminal law and 

professional discipline, id., at 429[, 96 S. Ct. at 994, 47 L. Ed. 

2d 128].

Burns v. Reed, 500 U.S. 478, 485-86, 111 S. Ct. 1934, 1939, 114 L. Ed. 2d 547 (1991).

“identity of the actor who performed it,” [Nero v. Mosby, 890 

F.3d 106, 118 (4th Cir. 2018)] (quoting [Buckley v. 

Fitzsimmons, 509 U.S. at 269, 113 S. Ct. at 2613, 125 L. Ed. 2d 

209]. Even a prosecutor, that is, will be entitled only to 

qualified immunity, rather than absolute immunity, if she is 

performing a function that is not tied to the judicial phase of 

the process. Buckley, 509 U.S. at 273, 113 S. Ct. [at 2616, 125 

L. Ed. 2d 209].

Annappareddy v Pascale, 996 F.3d 120, 139 (4th Cir. 2021).
38

Some courts have found officials who are not prosecutors may be entitled to 

prosecutorial immunity, but only for activities that equate with a prosecutor’s functions 

related to the judicial process. See, e.g., Smith v. Hatcher, 516 F. Supp. 3d 1369 (S.D. Ga. 

2021) (finding case manager entitled to prosecutorial immunity where claims stemmed 

entirely from case manager’s function as a legal advocate, i.e., assisting in prosecution and 

constructing a case for the prosecution); Golian v. New York City Admin. for Child. Servs., 

282 F. Supp. 3d 718, 726 (S.D.N.Y. 2017) (acknowledging that child services attorneys 

are entitled to prosecutorial immunity for functions analogous to a prosecutor). However,

there is a material difference between investigative functions 

normally performed by an investigator or police officer and the 

prosecutorial functions of filing and maintaining criminal 

charges. Consequently, . . . prosecutorial immunity does not 

extend to an investigator whose conduct is not intimately 

involved with the initiation and maintenance of criminal 

charges.

Stresemann v. Jesson, 868 N.W.2d 32, 35 (Minn. 2015). Furthermore, “the official seeking 

absolute immunity bears the burden of showing that such immunity is justified for the 

function in question.” Burns, 500 U.S. at 486, 111 S. Ct. at 1939, 114 L. Ed. 2d 547. “The 

presumption is that qualified rather than absolute immunity is sufficient to protect 

government officials in the exercise of their duties.” Id. at 486-87, 111 S. Ct. at 1939, 114 

L. Ed. 2d 547.

Here, Petitioners have failed to meet their burden of showing that they seek 

immunity for performing functions equal to those of a prosecutor intimately involved in 
39

the judicial phase of a criminal proceeding, instead relying on the circuit court’s general 

statement that they procured Mr. Bailey’ indictment. Accordingly, we find no error in the 

circuit court’s denial of prosecutorial immunity.

IV.

CONCLUSION

For the reasons explained in this opinion, in case number 22-779, we grant 

the requested writ of prohibition as to MFCU, and to Mr. Lyle to the extent Mr. Bailey’s 

§ 1983 claims were asserted against Mr. Lyle in his official capacity, because a § 1983 

claim may not be sustained against a state agency or its official acting in his or her official 

capacity. Furthermore, because Mr. Lyle had no authority to make employment decisions 

affecting Mr. Bailey’s employment, and, therefore, was not his employer as defined in the 

Whistle-Blower Law, Mr. Bailey’s whistle-blower claim against him cannot survive

Petitioners’ motion to dismiss.

In case number 22-781, we reverse the circuit court’s denial of qualified 

immunity to Mr. Lyle for Mr. Bailey’s § 1983 claims, because a § 1983 claim may not, as 

a matter of law, be founded on a Miranda violation, and the mere risk of a loss of liberty 

is insufficient to establish seizure of the person. We also reverse the circuit court’s denial 

of Petitioners’ motion to dismiss Mr. Bailey’s malicious prosecution claim. Mr. Bailey’s 

complaint fails to allege sufficient facts to meet the heightened pleading standard to 
40

overcome Petitioners’ qualified immunity, and the circuit court failed to address whether 

Mr. Lyle was acting within the scope of his employment—an analysis necessary to 

determine whether MFCU may be entitled to qualified immunity from vicarious liability 

for Mr. Lyle’s alleged malicious prosecution. Accordingly, we remand for additional 

proceedings related to Mr. Bailey’s malicious prosecution claim consistent with this 

opinion. Finally, we affirm the circuit court’s determination that Petitioners are not entitled 

to absolute prosecutorial immunity. 

No. 22-779, writ granted.

No. 22-781, affirmed in part, reversed in part, and remanded.