Based on the holdings of Harrah and Hutchison, federal district courts in West Virginia have held that damages are not available for violations of the state constitution, including for violations of Section 5. See, e.g., Nutter v. Mellinger, No. 2:19-cv-00787, 2020 WL 401790, at *6 (S.D.W. Va. Jan. 23, 2020) (Goodwin, J.); Langley v. Arresting Officer, No. 3:17-cv-3520, 2018 WL 4560208, at *4 (S.D.W. Va. Sept. 21, 2018) (Chambers, J.); Jones v. White, No. 5:17-cv-100, 2018 WL 2708750, at *7 (N.D.W. Va. June 5, 2018) (Stamp, J.); Howard v. Ballard, No. 2:13-cv-11006, 2015 WL 1481836, at *4 (S.D.W. Va. Mar. 31, 2015) (Johnston, J.); Smoot v. Green, No. 2:13-cv-10148, 2013 WL 5918753, at *4 (S.D.W. Va. Nov. 1, 2013) (Copenhaver, J.). Recently, however, some federal courts have found reason to believe that the Supreme Court of Appeals would recognize a private cause of action for damages for violations of constitutional rights, including under Article III, Section 5.
The Court therefore denies the claim of qualified immunity for the purposes of this Motion. See also Hammonds v. Wolfe, No. 3:18-1377, 2020 WL 1243609, at *7-8 (S.D.W. Va. Mar. 13, 2020) (denying qualified immunity because the plaintiff adequately alleged deliberate indifference to his medical needs); Jeffers v. W. Va. Div. of Corr. & Rehab., No. 3:19-0462, 2020 WL 521851, at *6-7 (S.D.W. Va. Jan. 31, 2020) (holding the same); Langley v. Arresting Officer, No. 3:17-3520, 2018 WL 4560208, at *4 (S.D.W. Va. Sept. 21, 2018) (holding the same). IV. CONCLUSION
Although not argued by Defendant Cox, the Court recognizes punitive damages may be recovered against her in her personal capacity. See Langley v. Arresting Officer, No. CV 3:17-3520, 2018 WL 4560208, at *4 (S.D. W. Va. Sept. 21, 2018) (stating "punitive damages are not prohibited when defendants are sued in their individual capacities"). Thus, as Defendant Cox also is sued in her individual capacity, that portion of her punitive damage claim remains.