Submitted: September 11, 2019
from the Circuit Court of Berkeley County The Honorable
Christopher C. Wilkes, Judge Civil Action No. 17-C-258
Christian J. Riddell, Esq. Stedman & Riddell, PLLC
Martinsburg, West Virginia Counsel for the Petitioner
Charles R. Bailey, Esq. Michael W. Taylor, Esq. Bailey &
Wyant, PLLC Charleston, West Virginia James W. Marshall, Esq.
Bailey & Wyant, PLLC Martinsburg, West Virginia Counsel
for the Respondents
BY THE COURT
"'"Appellate review of a circuit court's
order granting a motion to dismiss a complaint is de
novo." Syllabus point 2, State ex rel. McGraw
v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461
S.E.2d 516 (1995).' Syl. Pt. 1, Albright v.
White, 202 W.Va. 292, 503 S.E.2d 860 (1998)."
Syllabus Point 1, J.F. Allen Corp. v. Sanitary Bd. of
City of Charleston, 237 W.Va. 77');">237 W.Va. 77, 785 S.E.2d 627 (2016).
"The standard of review applicable to an appeal from a
motion to alter or amend a judgment, made pursuant to W.Va.
R. Civ. P. 59(e), is the same standard that would apply to
the underlying judgment upon which the motion is based and
from which the appeal to this Court is filed." Syllabus
Point 1, Wickland v. American Travellers Life Ins.,
204 W.Va. 430');">204 W.Va. 430, 513 S.E.2d 657 (1998).
County sheriff's departments and the law enforcement
officials they employ are not within the executive branch of
state government for purposes of the tolling provisions of
West Virginia Code § 55-17-3(a)(2) (2016).
WALKER, CHIEF JUSTICE.
Arthur Patton was arrested on June 2, 2015, by Deputy John
Cardello of the Berkeley County Sheriff's Department and
eventually pleaded no contest to third offense DUI and
fleeing from a law enforcement officer. More than two years
later, he sued Respondents Deputy Cardello, Berkeley County
and its Sheriff's Department, claiming that his arrest
violated his constitutional rights and was intentional
infliction of emotional distress and battery. The circuit
court dismissed Mr. Patton's claims because he did not
file within the two-year statute of limitations. He now
appeals the dismissal on the grounds that (1) the circuit
judge should have been disqualified from the case; and (2)
the tolling provision of West Virginia Code § 55-17-3(a)
should have applied once he gave notice of his claim to the
Berkeley County Sheriff's Department. We disagree and find
that because the sheriff's department is not part of the
executive branch of state government, the tolling provision
of § 55-17-3(a) did not apply. And, Mr. Patton's
allegations that the circuit judge should have been
disqualified were properly adjudicated (twice) by the Chief
Justice of this Court and are without merit.
FACTUAL AND PROCEDURAL BACKGROUND
Patton alleges that on June 2, 2015, Deputy John Cardello
used excessive force in apprehending him and beat him so
badly that he required facial reconstructive surgery and the
insertion of a metal plate into his cheek. He claims that
video from Deputy Cardello's "dash-cam" shows
him radioing dispatch that Mr. Patton was "making a run
for it before [Mr. Patton] had even opened his car door,
indicating . . . that Deputy Cardello intended to set up his
justification for brutality before engaging with him."
Deputy Cardello then rushed Mr. Patton the moment he stepped
out of the car. Mr. Patton asserts that the deputy next beat
him repeatedly about his body and face while Mr. Patton lay
helpless in a river. Mr. Patton also alleges that during
criminal proceedings, the dash-cam video disappeared for a
long period of time and became the subject of a discovery
dispute. The discovery dispute was eventually resolved and
the video was produced. Mr. Patton eventually pled no contest
to third offense DUI and fleeing from a law enforcement
5, 2017, Mr. Patton sent a notice under West Virginia Code
§ 55-17-3(a)(2) of intent to file an action to Doug
Copenhaver, President of the Berkeley County Council. Mr.
Patton alleges that this notice tolled the statute of
limitations for thirty days from the date the notice was
provided and received. On June 5, 2017, Mr. Patton filed his
complaint alleging a violation of his constitutional rights,
intentional infliction of emotional distress, and battery.
Respondents moved to dismiss the complaint, arguing that Mr.
Patton had not filed his civil suit within the two-year
statute of limitations under West Virginia Code §
55-2-12,  and that the statute of limitations
was not tolled because the Berkeley County Sheriff's
Office did not qualify as a "government agency"
under West Virginia Code § 55-17-2(2). The circuit
court granted Respondents' joint motion to dismiss Mr.
Patton's civil action, finding that sheriff's
departments are political subdivisions,  and that West
Virginia Code §§ 29-12A-1 through -18 does not
contain a notice requirement or any applicable tolling of the
general two-year statute of limitations.
circuit court concluded that Mr. Patton's action was
filed outside of the statute of limitations and dismissed the
action in September of 2017.
Patton alleges that following the dismissal of his claims, he
learned that the daughter of the circuit judge who
adjudicated this case worked as co-counsel on Mr.
Patton's criminal case during the discovery dispute
regarding the dash-cam video. Because Mr. Patton believed
that the daughter was involved in his criminal prosecution
and in the dispute about the dash-cam video, he alleged this
made her a material witness in the case, giving her more than
a de minimis interest in it. So, Mr. Patton filed a motion to
disqualify the circuit judge from the underlying civil
motion to disqualify the circuit judge, Mr. Patton asserted
that after he filed his complaint, he learned that Deputy
Cardello initially lied about having previously disclosed the
video in discovery, that the State then claimed for a period
of months that the video could not be located, and that the
video was eventually produced only after his counsel filed a
motion to compel and refused to engage in plea negotiations
until the video was produced. Mr. Patton alleged that a
question existed as to whether there was an attempt to hide
or otherwise suppress the video by intentionally misfiling
it, or by never actually filing it at all, both of which he
argued constituted police or prosecutorial misconduct. Mr.
Patton alleged that the daughter's testimony would most
likely be needed given her personal involvement in the case.
Mr. Patton's motion to disqualify was denied by
then-Chief Justice Loughry on October 3, 2017, Mr. Patton
filed a complaint against the circuit judge with the Judicial
Investigation Commission (JIC). Next, Mr. Patton filed a
supplemental motion for disqualification with this Court
informing the Court that he had filed a complaint with the
JIC. Then-Chief Justice Workman issued an
order denying Mr. Patton's second motion on March 30,
Mr. Patton moved to alter or amend the circuit court's
judgment, arguing that its decision to dismiss his civil
claims was clearly erroneous because a sheriff should be
considered a constitutional officer within the executive
branch, tolling the statute of limitations under the notice
provision of West Virginia Code § 55-17-1. The circuit
court denied Mr. Patton's motion on April 6, 2018,
finding no grounds for reconsideration, as there were no
manifest errors of law or fact to be corrected because county
sheriff's departments, county commissions, city
governments, and individuals employed by those entities are
political subdivisions and are not within the executive
branch of state government; and that Mr. Patton did not
provide any new evidence that would justify altering or
amending the circuit court's prior order. Mr. Patton now
appeals that order.
STANDARD OF REVIEW
our standard of review, "'"[a]ppellate review
of a circuit court's order granting a motion to dismiss a
complaint is de novo." Syllabus point 2,
State ex rel. McGraw v. Scott Runyan Pontiac-Buick,
Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).' Syl.
Pt. 1, Albright v. White, 202 W.Va. 292, 503 S.E.2d
860 (1998)." And, "[t]he standard of review
applicable to an appeal from a motion to alter or amend a
judgment, made pursuant to W.Va. R. Civ. P. 59(e), is the
same standard that would apply to the underlying judgment
upon which the motion is based and from which the appeal to
this Court is filed."
Motion to Disqualify
first assignment of error, Mr. Patton alleges that the
circuit judge should have been disqualified from presiding
over the case because he had a close family member with an
interest in Mr. Patton's civil case who, at a minimum,
would serve as a material witness. Mr. Patton contends that
under West Virginia Code of Judicial Conduct 2.11(A)(2),
 the circuit judge should have
Patton has previously raised this issue twice before this
Court. Both times, the Court denied his request for
disqualification. In a letter to this Court responding
to the motion to disqualify him, the circuit judge explained
that if his daughter was going to have involvement in Mr.
Patton's civil case, his recusal was warranted. But at
that stage of the proceedings, the case had been dismissed
and the only matter left for decision was Mr. Patton's
motion to alter or amend the judgment. The only additional
grounds in his supplemental motion for disqualification was
that Mr. Patton had filed a complaint against the circuit
judge before the JIC. In response to that, the circuit judge
stated he did not feel that a voluntary recusal was warranted
but recognized that if the circumstances changed and it
appeared that his daughter was going to have involvement in
the case, his recusal was mandated. Mr. Patton alleges that
his motion for disqualification specifically stated that the
daughter would, in fact, need to be called as a witness, at
least for a deposition, and that the circuit judge's
letter did not attempt to reconcile his agreement that a
potential conflict would arise should his daughter be
involved in the case.
Patton's motions for disqualification alleged the same
facts now presented in this appeal. His motions were denied
by prior orders of two Chief Justices, who both determined
that the evidence offered by Mr. Patton in support of his
motion to disqualify was insufficient to warrant
disqualification. "The matter of judicial recusal and
disqualification is a matter of discretion reposed solely in
the presiding judge and the Chief Justice of this
Court." Mr. Patton, now reiterating the same
argument, fails to offer any new evidence or argument in
support of his assertion that the proceedings below were not
fair. As such, we find no error.
Tolling of the ...