1 

No. 21-0905 — West Virginia Division of Corrections & Rehabilitation v. Damein 

Robbins 

and 

No. 21-0906 — Isaiah Blancarte & Bryon Whetzel v. Damein Robbins

BUNN, JUSTICE, concurring in part and dissenting in part: 

I agree with the majority’s determinations as to the Division of Correction’s 

appeal and their conclusion that the circuit court correctly denied Officer Whetzel’s motion 

to dismiss. I dissent and write separately because I believe Mr. Robbins failed to plead a 

claim against Officer Blancarte sufficient to overcome qualified immunity. 

Mr. Robbins asserted a 42 U.S.C. § 1983 claim alleging, in relevant part, that 

Officer Blancarte violated the Eighth Amendment prohibition of cruel and unusual 

punishment by failing to protect him from violence committed by other inmates. In 

response to Mr. Robbins’s claim, Officer Blancarte filed a West Virginia Civil Procedure 

Rule 12(b)(6) motion to dismiss based in relevant part on his entitlement to qualified 

immunity. The circuit court denied Officer Blancarte’s motion and the majority affirms 

this ruling. I would have reversed and granted dismissal to Officer Blancarte. 

Federal substantive law controls the analysis of Officer Blancarte’s 

entitlement to qualified immunity “because the claims to which qualified immunity are 

FILED 

June 9, 2023 

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 
2 

being asserted arise under federal law.” Ballard v. Delgado, 241 W. Va. 495, 504, 826 

S.E.2d 620, 629 (2019). 

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 

73 L. Ed. 2d 396 (1982), the Supreme Court of the United 

States addressed qualified immunity, holding that 

“government officials performing discretionary functions, 

generally are shielded from liability for civil damages insofar 

as their conduct does not violate clearly established statutory 

or constitutional rights of which a reasonable person would 

have known.” Id. [at] 818, 102 S. Ct. [at 2738, 73 L. Ed. 2d 

396]. 

Ballard, 241 W. Va. at 504, 826 S.E.2d at 629. As the majority correctly observes, a 

government official’s entitlement to qualified immunity depends on the answer to two 

questions: (1) when viewed in the light most favorable to Mr. Robbins, do the facts alleged 

show that Officer Blancarte’s conduct violated a constitutional right; and (2) is the 

constitutional right asserted clearly established? See Id. (citing Saucier v. Katz, 533 U.S. 

194, 201, 121 S. Ct. 2151, 2156, 150 L Ed. 2d 272 (2001)). The parties do not dispute that 

the Eighth Amendment prohibition of cruel and unusual punishment is clearly established. 

Accordingly, my analysis focuses on whether Mr. Robbins sufficiently alleged in his 

complaint that Officer Blancarte violated that right. 

The purpose of a Rule 12(b)(6) motion “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). “‘For purposes of the motion to dismiss, the complaint is construed in 

the light most favorable to plaintiff . . ., and its allegations are to be taken as true.’” W. Va. 

Bd. of Educ. v. Marple, 236 W. Va. 654, 660, 783 S.E.2d 75, 81 (2015) (quoting John W. 
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Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605, 245 S.E.2d 157, 158 (1978)). 

The trial court should grant dismissal only when “it appears beyond doubt that the plaintiff 

can prove no set of facts in support of his claim [that] would entitle him to relief.” Syl. pt. 

3, in part, Chapman v. Kane Transfer Co., Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977) 

(citation omitted). 

However, “a plaintiff may not ‘fumble around searching for a meritorious 

claim within the elastic boundaries of a barebones complaint[.]’” Boone v. Activate 

Healthcare, LLC, 245 W. Va. 476, 481, 859 S.E.2d 419, 424 (2021) (quoting Chaveriat v. 

Williams Pipe Line Co., 11 F.3d 1420, 1430 (7th Cir. 1993) (additional quotations and 

citation omitted)). Instead, “a complaint must be intelligibly sufficient for a circuit court or 

an opposing party to understand whether a valid claim is alleged and, if so, what it is.” 

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

516, 522 (1995). Even though a “plaintiff's burden in resisting a motion to dismiss is a 

relatively light one,” to overcome the motion a plaintiff must “at a minimum . . . set forth 

sufficient information to outline the elements of [the] claim,” and if the complaint “fails to 

do so, dismissal is proper.” Price v. Halstead, 177 W. Va. 592, 594, 355 S.E.2d 380, 383 

(1987). Thus, “[g]eneral allegations . . . are insufficient,” and a complaint must assert more 

than “mere sketchy generalizations of a conclusive nature unsupported by operative facts.” 

Newton v. Morgantown Mach. & Hydraulics of W. Va., Inc., 242 W. Va. 650, 654, 838 

S.E.2d 734, 738 (2019) (quotations and citation omitted). See also Par Mar v. City of 

Parkersburg, 183 W. Va. 706, 710, 398 S.E.2d 532, 536 (1990) (acknowledging that 
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“sketchy generalizations of a conclusive nature unsupported by operative facts do not set 

forth a cause of action”). 

Furthermore, it is well established that cases involving qualified immunity 

require a heightened pleading standard. See Hutchison v. City of Huntington, 198 W. Va. 

139, 149, 479 S.E.2d 649, 659 (1996) (“[I]n civil actions where immunities are implicated, 

the trial court must insist on heightened pleading by the plaintiff.”); Marple, 236 W. Va. at 

660, 783 S.E.2d at 81 (same). 

The uniqueness of qualified immunity and its provision of total 

immunity from suit rather than just a defense is an important 

reason for . . . heightened pleading. . . . [“]That is, plaintiffs 

‘should supply in their complaints or other supporting 

materials greater factual specificity and particularity than is 

usually required.’ [Elwood v. Rice Cty., 423 N.W.2d 671, 676 

(Minn. 1988)].” 

W. Va. Reg’l Jail & Corr. Facility Auth. v. Est. of Grove, 244 W. Va. 273, 282, 852 S.E.2d 

773, 782 (2020) (quoting Xiao v. Rodriguez, No. A18-0646, 2019 WL 1983488, at *8 

(Minn. Ct. App. May 6, 2019)). 

To properly plead that Officer Blancarte violated the Eighth Amendment’s 

prohibition of cruel and unusual punishment founded on a failure to protect, Mr. Robbins 

had to allege facts supporting two required elements of his claim: (1) that the conditions of 

his incarceration posed an objectively substantial risk of serious harm; and (2) that Officer 

Blancarte acted with deliberate indifference to Mr. Robbins’s health or safety, which is a 

subjective component of his claim. As the United States Supreme Court explained, 
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[i]t is not . . . every injury suffered by one prisoner at 

the hands of another that translates into constitutional liability 

for prison officials responsible for the victim’s safety. Our 

cases have held that a prison official violates the Eighth 

Amendment only when two requirements are met. First, the 

deprivation alleged must be, objectively, “sufficiently 

serious[.]” . . . For a claim (like the one here) based on a failure 

to prevent harm, the inmate must show that he is incarcerated 

under conditions posing a substantial risk of serious harm . . . . 

The second requirement follows from the principle that 

“only the unnecessary and wanton infliction of pain implicates 

the Eighth Amendment.” . . . To violate the Cruel and Unusual 

Punishments Clause, a prison official must have a “sufficiently 

culpable state of mind.” . . . In prison-conditions cases that 

state of mind is one of “deliberate indifference” to inmate 

health or safety[.] 

Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811 (1994) 

(citations omitted). 

Mr. Robbins’s complaint failed to allege any facts against Officer Blancarte 

to support his Eighth Amendment claim. While the complaint included factual allegations 

as to how Officer Whetzel allowed other inmates to have access to Mr. Robbins and that 

Officer Whetzel observed the incident and failed to intervene,1 no such facts were alleged 

1

 The complaint alleged that 

19. Upon information and belief, the three inmates 

entered the lock down cell after an unknown corrections 

officer, Bryon Whetzel, acting as the Tower Officer unlocked 

the cell door and permitted them entry . . . . 

 . . . . 
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against Officer Blancarte. The only factual allegations against Officer Blancarte in the 

complaint are: 

8. At all relevant times, Defendant Isaiah Blancarte 

was a corrections officer at Potomac Highlands Regional Jail. 

 . . . . 

30. During the assault of Plaintiff, Defendant 

Blancarte was functioning as the rover in pod A-6. Defendant 

Blancarte and Defendant Whetzel permitted inmates to roam 

around A-6 pod together and allowed entry of other inmates 

into Plaintiff’s cell 

Other allegations pertaining to Officer Blancarte merely state unsupported conclusions.2

As the majority observes, “deliberate indifference entails something more 

than mere negligence, . . . [but] is satisfied by something less than acts or omissions for the 

27. During the assault, Plaintiff was paraded around 

the pod to other cells for the purpose of humiliating him and to 

“show off” what was done to him. Defendant Bryon Whetzel 

observed these actions yet did nothing to intervene. 

(Emphasis added). 

2

 For example, Mr. Robbins alleges that Officers Whetzel and Blancarte 

“displayed a deliberate indifference to the safety and security of Plaintiff when they 

permitted other inmates to enter Plaintiff’s lockdown cell”; “displayed deliberate 

indifference to the Plaintiff’s constitutional right to be free from cruel and unusual 

punishment when they ignored the physical and sexual assault at the hands of the other 

inmates”; and “were aware of the substantial risk of harm to Plaintiff when they permitted 

the three other inmates to enter Plaintiff’s lockdown cell when he was known to be 

incarcerated as a result of a sexual offense criminal conviction.” There are no facts alleged 

in the complaint to support these conclusory statements. 
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very purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. 

at 835, 114 S. Ct. at 1978, 128 L. Ed. 2d 811. Pursuant to Farmer, 

a prison official cannot be found liable under the Eighth 

Amendment for denying an inmate humane conditions of 

confinement unless the official knows of and disregards an 

excessive risk to inmate health or safety; the official must both 

be aware of facts from which the inference could be drawn that 

a substantial risk of serious harm exists, and he must also draw 

the inference. 

Id. at 837, 114 S. Ct. at 1979, 128 L. Ed. 2d 811. Mr. Robbins failed to allege sufficiently 

detailed information to support these elements or permit inferences that they existed with 

respect to his Eighth Amendment claims against Officer Blancarte. See Fass v. Nowsco 

Well Serv., Ltd., 177 W. Va. 50, 52, 350 S.E.2d 562, 563 (1986) (per curiam) (“The 

complaint must set forth enough information to outline the elements of a claim or permit 

inferences to be drawn that these elements exist.”). Nothing in Mr. Robbins’s amended 

complaint indicates that Officer Blancarte was “aware of facts” from which he could infer 

“that a substantial risk of serious harm” to Mr. Robbins existed, or that Officer Blancarte 

actually drew such an inference. Farmer, 511 U.S. at 837, 114 S. Ct. at 1979, 128 L. Ed. 2d 

811. Mr. Robbins did not allege that Officer Blancarte knew why Mr. Robbins was in 

felony pod A-6, a segregated housing unit, or that Mr. Robbins was promised his cell would 

remain locked. Mr. Robbins did not allege that Officer Blancarte was ever actually present 

in pod A-6 at any time during the assault, which, according to Mr. Robbins’s counsel, 

occurred over a period of about four-and-one-half hours.3 Finally, Mr. Robbins did not 

3

 In denying Officer Blancarte’s motion to dismiss, the circuit court 

incorrectly stated that “Plaintiff alleges that . . . [i]n his role as a rover, Defendant Blancarte 
8 

allege that Officer Blancarte had knowledge of the assault yet failed to intervene. Because 

Mr. Robbins failed to adequately plead his Eighth Amendment claim against Officer 

Blancarte, I would have reversed the circuit court and remanded with instructions to 

dismiss Mr. Robbins’s claim against Officer Blancarte.4

was present within the lock down pod on numerous occasions throughout the time of the 

assault.” Mr. Robbins made no such allegation in his amended complaint. 

4

 I am aware that 

[a] plaintiff is not required to anticipate the defense of 

immunity in his complaint, Gomez v. Toledo, 446 U.S. 635, 

640, 100 S. Ct. 1920, 1923-24, 64 L. Ed. 2d 572 (1980), and, 

under the West Virginia Rules of Civil Procedure, the plaintiff 

is required to file a reply to a defendant’s answer only if the 

circuit court exercises its authority under Rule 7(a) to order 

one. We believe, in cases of qualified or statutory immunity, 

court ordered replies and motions for a more definite statement 

under Rule 12(e) can speed the judicial process. Therefore, the 

trial court should first demand that a plaintiff file “a short and 

plain statement of his complaint, a [statement] that rests on 

more than conclusion[s] alone.” Schultea v. Wood, 47 F.3d 

[1427,] 1433 [(5th Cir. 1995)]. Next, the court may, on its own 

discretion, insist that the plaintiff file a reply tailored to an 

answer pleading the defense of statutory or qualified immunity. 

Hutchison v. City of Huntington, 198 W. Va. 139, 150, 479 S.E.2d 649, 660 (1996). In this 

case, Mr. Robbins does not complain that he was deprived of an opportunity to address Mr. 

Blancarte’s immunity claim. See, e.g., C.C. v. Harrison Cnty. Bd. of Educ., 245 W. Va. 

594, 614 n.1, 859 S.E.2d 762, 782 n.1 (2021) (Armstead, J., concurring) (“[T]he record 

before us does not reflect that Petitioners allege specific error on the part of the circuit court 

for any alleged failure to provide them the opportunity to amend their pleadings to address 

the [defendant’s] assertion in its Motion to Dismiss that it was immune from Petitioners’ 

claims pursuant to [the] Tort Claims Act.”).