STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Kenneth Edward Chance, Jr.,
Plaintiff Below, Petitioner FILED
September 11, 2015
RORY L. PERRY II, CLERK
vs) No. 15-0340 (Kanawha County 14-C-1830) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Cheryl Chandler, Executive Assistant, Mount
Olive Correctional Complex; David Ballard,
Warden, Mount Olive Correctional Complex; and
Jim Rubenstein, Commissioner, West Virginia
Division of Corrections; Defendants Below,
Respondents
MEMORANDUM DECISION
Petitioner Kenneth Edward Chance, Jr., pro se, appeals the order of the Circuit Court of
Kanawha County, entered March 20, 2015, that dismissed his civil action against certain
correctional officials. Respondents Cheryl Chandler, Executive Assistant, Mount Olive
Correctional Complex; David Ballard, Warden, Mount Olive Correctional Complex; and Jim
Rubenstein, Commissioner, West Virginia Division of Corrections, by counsel John P. Fuller and
Daniel T. LeMasters, filed a 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.
From February of 1995 until May 23, 2013, petitioner was an inmate at Mount Olive
Correctional Complex (“Mount Olive”). On May 23, 2013, petitioner was transferred from Mount
Olive to the Northern Correctional Facility. In his civil action, petitioner alleged that this transfer
was in retaliation for making accusations against Respondent Chandler. Petitioner made
accusations against Respondent Chandler after: (1) petitioner’s request to present criminal
allegations to a grand jury; (2) petitioner’s requests for information about a charity fundraiser at
Mount Olive; and (3) petitioner’s participation in a court-ordered investigation to look into
petitioner’s allegations regarding financial irregularities. Petitioner alleged that Respondent
Chandler threatened to spread a false and malicious rumor regarding petitioner in anticipation that
other inmates would then harm or kill petitioner. Respondent Chandler allegedly further
threatened petitioner that if he did not withdraw his second Freedom of Information request,
Respondent Chandler would arrange for other inmates to murder petitioner. In addition to the
allegations involving Respondent Chandler, petitioner averred that Respondents Rubenstein and
1
Ballard failed to adhere to staff disciplinary rules by not disciplining Respondent Chandler for her
alleged actions.
Petitioner filed his civil action on October 7, 2014. In his complaint, petitioner sought
monetary damages as well as declaratory and injunctive relief. On December 2, 2014, respondents
filed a motion to dismiss petitioner’s action based upon qualified immunity and because
petitioner’s allegations were conclusory in nature.1 Petitioner filed a response to the motion to
dismiss on December 12, 2014, in which he addressed respondents’ arguments. Subsequently, by
order entered March 20, 2015, the circuit court dismissed petitioner’s action, finding that
respondents had qualified immunity as to his claims. In addition, the circuit court found that
petitioner’s complaint contained “[bald] accusations of alleged conspiracies . . . and baseless
conclusory statements.”
Petitioner now appeals the circuit court’s March 20, 2015, dismissal of his action. We
review a circuit court’s dismissal of an action de novo. See Syl. Pt. 2, State ex rel. McGraw v. Scott
Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 773, 461 S.E.2d 516, 519 (1995). We note that a
heightened pleading standard applies when an inmate alleges that prison officials have retaliated
against him for exercising his fundamental rights. See State ex rel. Anstey v. Davis, 203 W.Va.
538, 550, 509 S.E.2d 579, 591 (1998).
On appeal, the parties dispute whether the circuit court dismissed the action for a failure to
state a claim on which relief can be granted. Based on his contention that the doctrine of qualified
immunity was the only reason for the circuit court’s dismissal, petitioner argues that qualified
immunity does not bar his claims for declaratory and injunctive relief.2 However, in the circuit
court, petitioner replied to respondent’s argument that his allegations were conclusory. Therefore,
because a dismissal for a failure to state a claim on which relief can be granted disposes of all of
petitioner’s claims, we affirm the circuit court’s dismissal on that ground3—for reasons discussed
infra—and do not address the qualified immunity issue.4
1
On appeal, petitioner argues that the circuit court erred in considering respondents’
motion to dismiss because the motion was filed before the pre-screening of petitioner’s action
required by the Prisoner Litigation Reform Act, West Virginia Code § 25-1A-4. We have
determined that the circuit court’s adjudication of the motion to dismiss in lieu of pre-screening of
petitioner’s action did not constitute error. See Syl. Pt. 1, Ward v. Cliver, 212 W.Va. 653, 654, 575
S.E.2d 263, 264 (2002) (construing pre-screening pursuant to West Virginia Code § 25-1A-4 as
discretionary).
2
See Camreta v. Greene, __ U.S. __, __ n. 5, 131 S.Ct. 2020, 2031 n. 5, 179 L.Ed.2d 1118,
1132 n. 5 (2011) (qualified immunity unavailable in actions to enjoin future conduct).
3
Even if the circuit court meant to rule only on the qualified immunity ground, we “are not
wed . . . to the lower court’s rationale, but may rule on any alternate ground manifest in the record.”
Conrad v. ARA Szabo, 198 W.Va. 362, 369, 480 S.E.2d 801, 808 (1996).
4
Because we do not address the qualified immunity issue, we also decline to address
(Continued . . .)
2
Petitioner acknowledges that respondents describe his allegations as “baseless.” Indeed,
petitioner alleged, inter alia, that Respondent Chandler—the executive assistant to Respondent
Ballard—threatened to arrange his murder by other inmates. We determine that petitioner’s bald
allegations of conspiracies do not survive the heightened pleading standard that applies pursuant to
Anstey. See also Par Mar v. City of Parkersburg, 183 W.Va. 706, 711, 398 S.E.2d 532, 537 (1990)
(stating that even under normal pleading standard, baseless pleading cannot be justified).
Therefore, we conclude that petitioner’s complaint fails to state a claim on which relief can be
granted as it relates to Respondent Chandler’s alleged threats. Because the claim against
Respondent Chandler fails, we find that petitioner’s claims that Respondents Rubenstein and
Ballard did not appropriately discipline Respondent Chandler also fail.
With regard to petitioner’s transfer from Mount Olive to the Northern Correctional
Facility, we find that prison officials have discretion to transfer prisoners in an effort to maintain a
satisfactory operational environment. “We must be careful not to substitute our judgment for that
of prison administrators.” Nobles v. Duncil, 202 W.Va. 523, 534, 505 S.E.2d 442, 453 (1998); see
also O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (“evaluation of penological objectives
is committed to the considered judgment of prison administrators” because it is prison
administrators who have to “anticipate security problems and to adopt innovative solutions to the
intractable problems of prison administration”). By petitioner’s own allegations, he was
participating in a court-ordered investigation, in which he alleged that numerous Mount Olive
officials had committed embezzlement. Nevertheless, petitioner contends that respondents
transferred him to the Northern Correctional Facility at least in part to retaliate against him.
However, under Anstey, prison officials’ motivation is irrelevant and the only pertinent inquiry is
whether prison officials’ action violated a fundamental right. See 203 W.Va. at 550, 509 S.E.2d at
591 (“[T]his Court will generally determine the constitutionality of a challenged prison policy, not
by the legitimacy of the motivations for its enactment, but according to whether the policy results
in a violation of a fundamental right.”) (emphasis added). In Anstey, we noted that while a
prisoner’s exercise of his right to access to the courts should not be chilled, that right is not
completely unfettered because of “the acknowledged propensity” toward abuse. Id., 203 W.Va. at
547, 509 S.E.2d at 588 (internal quotations and citations omitted). We note that petitioner is
currently pursuing more than one appeal in this Court. 5 Therefore, we cannot conclude that
petitioner’s transfer from Mount Olive chilled petitioner’s exercise of the right to access the courts
and, accordingly, do not find an abuse of discretion in the decision to transfer petitioner.
For the foregoing reasons, we find no error in the decision of the Circuit Court of Kanawha
County and affirm the circuit court’s dismissal of petitioner’s action.
petitioner’s argument that the circuit court’s findings with regard to qualified immunity were
insufficient to support a ruling on that basis.
5
In Supreme Court No. 15-0297, petitioner is appealing the denial of a petition he filed
pursuant to the West Virginia Freedom of Information Act with regard to the State’s prison food
and medical service contractors’ alleged non-compliance with their contracts.
3
Affirmed.
ISSUED: September 11, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
4