Larry Helms, by counsel David A. Sims, appeals the October
14, 2016, order of the Circuit Court of Marion County that
granted summary judgment to Respondent Joseph N. Carpenter,
in his official capacity as sheriff, and Respondent
Sheriff's Office of Marion County in petitioner's
action for alleged civil rights violations; failure to
implement appropriate policies, customs, and practices; false
arrest; deprivation of liberty without due process;
intentional infliction of emotional distress; outrage;
battery; negligent violation of constitutional rights; and
negligent training and supervision. Petitioner also appeals
the October 22, 2016, order that denied his motion to amend
his complaint so that he could sue Respondent-Sheriff in his
individual capacity. Respondents, by counsel Peter G.
Zurbuch, filed a response. Petitioner filed a reply.
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 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
obtains the water for his Marion County residence from a well
located on the property of his neighbors, Rodney and Tammy
Miller. Sometime prior to 9:52 a.m. on Thursday, September 1,
2011, petitioner went to the Miller property to determine why
he was having a problem with his water supply. Petitioner
claims that the piping at the well had been manipulated to
prevent any water from flowing into petitioner's
cistern/home. Petitioner states that he reconnected the pipe
and then returned to his home.
a.m. that same morning, the Marion County 911 Center received
a call from Derrick Steele, who is petitioner's neighbor.
Mr. Steele reported that petitioner was "chasing [Mr.
Miller] down the road saying 'stop I'm going to beat
your head in'" and that petitioner had made threats
against Mr. Miller in the past. At 9:54 a.m., petitioner
called the Marion County 911 Center regarding the
altercation. Deputy Ryan Gannon was dispatched to the scene
where he spoke with petitioner and took his statement.
Petitioner alleged that (1) his water had tasted bad for two
days and he did not have any water at his residence; (2) he
went to the well on the Miller property where he found what
he believed to be intentional damage to a pipe caused by Mr.
Miller; (3) he waited for Mr. Miller to drive by so he could
speak with him; (4) Mr. Miller drove by him at a high rate of
speed and almost struck him; and (5) he (petitioner) had his
rifle with him because Mr. Miller carries a gun. Deputy
Gannon instructed petitioner not to have any further contact
with Mr. Miller and to stay off the Miller property while the
matter was being investigated.
p.m. that same day, Mr. Miller called 911 and said petitioner
had been on his property and was fighting with him, but had
left and might be going to get a shotgun. Deputy Gannon and
Deputy Jonathan Carter responded to the scene where they
spoke with Derrick Steele, the neighbor who had called 911
earlier in the day. Mr. Steele reported that he saw
petitioner yelling at Mr. Miller and attempting to open the
side door of Mr. Miller's truck as it passed petitioner.
Deputy Gannon also took statements from Mr. and Mrs. Miller.
In his statement, Mr. Miller said the following:
At 9:30 I walked out to get in my truck and [petitioner]
started yelling he was going to kick my ass. So I walked back
in and called the counties [sic] and put my 4 year old
daughter in the car passenger side back seat. I went down the
drive way and [petitioner] was on the bridge grabbed my
passenger mirror, and door handle. Screaming he was going to
kill me. I cont. to go slowly and he then started chasing me
down the road. . . . He attempted to get in my car. I fear
for my daughter cause she was right at the passenger door.
Miller's statement provided that,
[a]t 4:05 p.m. [on Thursday, September 1, 2011, ] I was
coming home up my driveway and [petitioner] came behind me on
a 4-wheeler came up on my property yelling. I got something
for u bitch. I went into my front yard yelling you are trust
passing [sic] he continued walking up saying it was his
water. I said this is my property you need to leave. He
cursed me calling me a bitch, gutter slut, telling me I
don't work, and that he was going to get me and this
ain't over. I cont. to yell you are trust passing [sic]
this is our property and he was telling me it wasn't. He
then came at me got in my face nose to nose calling me a
bitch and he would see me dead and he spit in my face. . . .
Deputy Gannon prepared a criminal complaint against
petitioner for misdemeanor trespassing on posted land in
violation of W.Va. Code § 61-3B- 3(a), and for
misdemeanor battery (spitting on Mrs. Miller) pursuant to
W.Va. Code § 61-2-9(c). The Sheriff's Department
presented the criminal complaint to Magistrate Missy
Pride-Linger on Friday, September 2, 2011. That same day,
Magistrate Linger found probable cause on both charges and
issued a warrant for petitioner's arrest.
Carter and Gannon arrived for work on Friday, September 2,
2011, at 3:00 p.m. At 4:36 p.m., the deputies were dispatched
to petitioner's residence where they executed the arrest
warrant. At 5:01 p.m., the deputies brought petitioner to the
sheriff's office for processing. However, the deputies
did not present petitioner to the magistrate for arraignment
at that time because the magistrate court had closed for the
day at 4:30 p.m. Petitioner was thereafter processed and, at
6:05 p.m., left the sheriff's office for the regional
jail in Doddridge County. Petitioner arrived there at 6:52
Marion County Magistrate Courts' regular operating hours
are 8:30 a.m. through 4:30 p.m., Monday through Friday.
Additionally, per Rule 1(b) of the Administrative Rules for
the Magistrate Courts of West Virginia, a magistrate is on
call at other times, as follows:
On call. - One magistrate in each county, on a
rotating basis, shall be on call at all times other than
regular office hours. On-call duties shall extend, in
criminal cases, to initial appearances; to taking bond for
someone who is in jail; and to receiving and acting upon
emergency search warrants, domestic violence matters, and
juvenile abuse and neglect matters.
(1) Initial appearances and taking bond in criminal
cases. - Within the time periods provided for below, the
on-call magistrate shall contact the county or regional jail,
whichever applies . . ., and shall inquire whether any person
has been arrested in the county since the close of regular
business hours or since the last contact with the jail, or
whether anyone confined to the jail is able to post bond. If
an arrest has been made or if a prisoner is able to post
bond, the magistrate shall proceed immediately to the