MARTINSBURG – A federal judge has ruled former Jefferson County Sheriff Bobby Shirley can’t be sued “in his official capacity” by a man who claimed excessive force during his arrest for bank robbery.

U.S. District Judge John Preston Bailey on April 16 granted Shirley’s motion to dismiss claims against Shirley arising from him acting in an official capacity. The ruling still left Mark Haines, who said Shirley kicked him in the head during the arrest, with his claim against Shirley in an individual capacity.

Shirley pleaded guilty to criminal charges earlier this year and resigned.

Official capacity claims are not claims against the defendant named, but the entity he or she represents. In this case, Shirley would have represented the Jefferson County Commission.

Had Haines succeeded on his official capacity claim, he would have recovered damages from the commission, not Shirley.

“In this case, the plaintiff alleges that Sheriff Shirley was the final policymaking authority,” Bailey wrote.

“The question of who exercises final policymaking authority is a question of state law to which the court can apply its independent judgment. This court will assume, without deciding, that Sheriff Shirley was a municipal policymaker.

“Nevertheless, the plaintiff has not only failed to identify a policy or custom that would be sufficient to impose liability on the County Commission, he has failed to state any facts from which this court could infer such a cause of action.”

Bailey says Haines asked him to infer liability from a single decision taken by the highest official responsible.

“This court has read the amended complaint as liberally as it can, yet finds it falls well short of stating a plausible claim against defendant Shirley in his official capacity,” Bailey wrote.

“The complaint fails to identify any evidence which would tend to show that Sheriff Shirley and his subordinates’ alleged conduct followed a custom or policy or that it is widespread.”

In June, a federal grand jury indicted Shirley on charges relating to his arrest of Haines 18 months earlier. According to both the indictment and the civil suit Haines filed, Shirley recklessly beat and kicked Haines following a high-speed chase on Dec. 27, 2010

Shirley and deputies with the Jefferson County Sheriff’s Department began their chase of Haines after receiving a report he attempted to rob the drive-thru of the City National Bank at the Potomac Marketplace shopping center in Ranson.

Eventually, officers with the Charles Town and Ranson police departments joined in and were later followed by the Berkeley County Sheriff’s Department and the West Virginia State Police.

After Haines stopped his pick-up truck in a field across from Files Cross Road, he stepped out of the vehicle with his hands in the air. After one or more of the officers pushed him against the bed of truck, Shirley “climbed into the bed… and kicked [him] repeatedly in the head with a deliberate and sadistic intention to inflict injury on [him],” it is alleged.

A lawsuit related to Haines’ civil suit has been filed in Jefferson Circuit Court. There, the county’s insurance provider is claiming it shouldn’t be responsible for defending and indemnifying Shirley in Haines’ suit.

West Virginia Counties Group Self Insurance Risk Pool filed its lawsuit March 15, claiming the coverage contract contained an Expected or Intended Injury exception.

“All allegations in (Haines’ amended complaint) against Defendant Shirley were allegedly undertaken with deliberate and sadistic intention such that the Expected or Intended Injury exclusion applies,” the complaint says.

It adds there are exclusions for fraud and dishonesty and punitive damages.

The insurer had sought to intervene in Haines’ lawsuit, but Bailey denied its motion.

Shirley is being represented by Wendy Greve of the law firm Pullin, Fowler, Flanagan, Brown & Poe.

“Plaintiff’s state common law claims against Shirley in his official capacity should be dismissed because he is an improper party in his official capacity and the Jefferson County Commission, even if it were a party defendant, is not liable for any of Plaintiff’s claimed damages allegedly caused by intentional or non-negligent acts of the individually named defendants,” the motion to dismiss said.

Harry Waddell, Haines’ attorney, said the allegations in his complaint clearly supported a claim of excessive force.

“They also support a plausible claim against the Jefferson County Commission due to the fact that Shirley was acting as the chief law enforcement officer of Jefferson County,” Waddell wrote.

“As such he was the final policymaker for the County in the area of law enforcement.”

From the West Virginia Record: Reach John O’Brien at

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