IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA Spring 2024 Term FILED _____________________ April 15, 2024 released at 3:00 p.m. ASHLEY N. DEEM, DEPUTY CLERK No. 22-ICA-163 INTERMEDIATE COURT OF APPEALS _____________________ OF WEST VIRGINIA HANK HECKMAN and LOREN GARCIA, Plaintiffs Below, Petitioners, v. BETSY JIVIDEN, JEFF SANDY, and PATRICK MORRISEY, Defendants Below, Respondents. ________________________________________________________ Appeal from the Circuit Court of Kanawha County Honorable Tera Salango, Judge Civil Action Nos. 21-C-903 and 21-C-904 AFFIRMED _________________________________________________________ Submitted: January 10, 2024 Filed: April 15, 2024 Jeremy B. Cooper, Esq. Johnnie E. Brown, Esq. Blackwater Law PLLC James A. Muldoon, Esq. Aspinwall, Pennsylvania Pullin, Fowler, Flanagan, Brown & Counsel for Petitioners Poe, PLLC Charleston, West Virginia Counsel for Respondent Morrisey William E. Murray, Esq. Bailey & Wyant, PLLC Charleston, West Virginia Counsel for Respondents Jividen and Sandy CHIEF JUDGE SCARR delivered the Opinion of the Court. SCARR, CHIEF JUDGE: Petitioners, Hank Heckman and Loren Garcia, appeal the Orders granting the Respondents’ motions to dismiss entered by the Circuit Court of Kanawha County on September 14, 2022. Petitioners brought various claims against the Respondents in their individual and official capacities for their involvement in the creation and implementation of a West Virginia Department of Corrections and Rehabilitation policy that changed the good time and parole eligibility for those reincarcerated after the revocation of their supervised release. The implementation of the new policy led to the rearrest and reincarceration of individuals who had already been released on parole, including the Petitioners. After the Petitioners’ release pursuant to State ex rel. Phalen v. Roberts, 245 W. Va. 311, 858 S.E.2d 936 (2021), they brought suit, seeking damages, injunctive relief, and declaratory judgment for various tort and constitutional claims. The circuit court found that the Respondents were entitled to absolute, qualified, and statutory immunity from liability regarding their involvement with the creation and implementation of the policy. The circuit court also concluded that the Respondents were not “persons” under 42 U.S.C. § 1983, that the Petitioners had failed to state a claim for a taking and for money damages, and that Respondent Morrisey’s office was entitled to sovereign immunity. Having reviewed the parties’ arguments, the record on appeal, and the controlling law, we affirm the circuit court’s September 14, 2022, dismissal orders. We affirm for the reasons discussed below, on the basis of the Respondents’ immunity from liability regarding the creation and implementation of the policy. 1 I. FACTUAL AND PROCEDURAL BACKGROUND Petitioner Hank Heckman was indicted in Taylor County, West Virginia, in 2010 for sexual offenses, and was subsequently committed as a youthful offender pursuant to a plea agreement. Following Mr. Heckman’s commitment as a youthful offender, he was placed on three years of supervised probation and ten years of extended supervised release. Mr. Heckman violated his supervised probation and was reincarcerated until he completed his term of supervised probation. Once released, Mr. Heckman began his ten-year term of supervised release. Mr. Heckman’s supervised release was subsequently revoked, and on July 20, 2017, he was …
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