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Patton v. County of Berkeley

Supreme Court of Appeals of West Virginia

November 12, 2019

ARTHUR PATTON, Petitioner
v.
COUNTY OF BERKELEY, WEST VIRGINIA and BERKELEY COUNTY SHERIFF'S DEPARTMENT, and DEPUTY JOHN CARDELLO, individually, and in his capacity as an employee of Berkeley County, Respondents

          Submitted: September 11, 2019

          Appeal 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

         SYLLABUS BY THE COURT

         1. "'"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).

         2. "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).

         3. 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).

          OPINION

          WALKER, CHIEF JUSTICE.

         Petitioner 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.[1] 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. 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 officer.

         On May 5, 2017, Mr. Patton sent a notice under West Virginia Code § 55-17-3(a)(2)[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, [3] 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).[4] The circuit court granted Respondents' joint motion to dismiss Mr. Patton's civil action, finding that sheriff's departments are political subdivisions, [5] and that West Virginia Code §§ 29-12A-1 through -18[6] does not contain a notice requirement or any applicable tolling of the general two-year statute of limitations.

         The circuit court concluded that Mr. Patton's action was filed outside of the statute of limitations and dismissed the action in September of 2017.

         Mr. 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 matter.

         In the 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.

         After 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.[7] Then-Chief Justice Workman issued an order denying Mr. Patton's second motion on March 30, 2018.

         Meanwhile, 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.[8] 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.

         II. STANDARD OF REVIEW

         Regarding 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)."[9] 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."[10]

         III. DISCUSSION

         A. Motion to Disqualify

         In his 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), [11] the circuit judge should have recused himself.

         Mr. Patton has previously raised this issue twice before this Court. Both times, the Court denied his request for disqualification.[12] 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.

         Mr. 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."[13] 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.[14] As such, we find no error.

         B. Tolling of the ...


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