Folse

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

JAY FOLSE,

Plaintiff,

v. Civil Action No. 2:22-cv-00171

JOHN MCCUSKEY JR, in his individual

and official capacities,

G. RUSSELL ROLLYSON, JR., in his individual

and official capacities,

WALLACE LOONEY, in his individual

and official capacities,

LISA HOPKINS, in her individual

and official capacities,

STEPHEN CONNOLLY, in his individual

and official capacities,

MICHAEL NUSBAUM, in his individual

and official capacities, and

KEVIN FOREMAN, in his individual

and official capacities,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is Magistrate Judge Tinsley’s Proposed

Findings and Recommendation (“PF&R”) (ECF No. 115), filed on May

14, 2025, and plaintiff Jay Folse’s objections thereto (ECF No.

119), filed on June 2, 2025, relating to the following:

plaintiff’s pro se “Motion for Discovery Sanctions Against

Defendants Rollyson and McCuskey” (ECF No. 107), filed on April

18, 2025; “Motion for Summary Judgment” (ECF No. 86), filed by

defendants Kevin Foreman and Wallace Looney on May 24, 2025; and

“Defendants’ Motion for Summary Judgment” (ECF No. 88), filed by

defendants John B. McCuskey, Jr., G. Russell Rollyson, Jr., Lisa

Hopkins, Stephen Connolly, and Michael Nusbaum on May 24, 2025.

I. BACKGROUND

Plaintiff filed a pro se complaint (ECF No. 1) on

April 8, 2022, followed by an amended complaint (ECF No. 32) on

May 31, 2022. He remains pro se. Plaintiff in the operative

amended complaint alleges “deprivation of his constitutional

rights under the First, Fourth, and Fourteenth Amendments to the

United States Constitution and state law claims for intentional

infliction of emotional distress and economic damages.” ECF No.

32 at 1. He brings this Section 1983 action for false arrest,

malicious prosecution, and retaliatory arrest and prosecution.

Id.

Defendants McCuskey, Rollyson, Hopkins, Connolly, and

Nusbaum, by counsel, filed an answer to the amended complaint

(ECF No. 62) on September 20, 2023. Defendants Foreman and

Looney, by separate counsel, filed an answer (ECF No. 63) to the

amended complaint on September 21, 2023.

At all relevant times, defendant McCuskey was the

Auditor for the State of West Virginia; defendant Rollyson was

the Deputy Commissioner of Delinquent and Non-entered Lands (an

agent of the West Virginia State Auditor); defendant Looney was

a sergeant with the West Virginia Capitol Police; defendant

Hopkins was the Senior Deputy Commissioner of Securities and

General Counsel for the West Virginia State Auditor’s Office

(“WVSAO”); defendant Connolly was Deputy State Auditor and

General Counsel for the WVSAO; defendant Nusbaum was Associate

General Counsel and Senior Regulatory Counsel for the WVSAO; and

defendant Foreman was the Director of the West Virginia Capitol

Police. See ECF No. 8 at 2.

A.

Plaintiff’s allegations stem from interactions between

plaintiff and defendants in connection with plaintiff’s purchase

of tax liens from the WVSAO. See ECF No. 32 at ¶¶5-12, 16-42.

After a years-long breakdown of relationship between plaintiff

and the WVSAO, on August 12, 2021, defendant Rollyson filed a

petition with the Magistrate Court of Kanawha County, West

Virginia, for the issuance of a Personal Safety Order (“PSO”)

against plaintiff, wherein Rollyson stated that the PSO was

necessary because plaintiff made “repeated credible threats of

bodily injury knowing or having reason to know that the threats

caused reasonable fear for safety in violation of West Virginia

Code § 53-8-4(a)(3).” ECF No. 22-3 at 2.

The Kanawha County Magistrate Court, acting by

Magistrate Shelton, issued the PSO on August 20, 2021. See ECF

No. 22-3 at 3. The PSO, endorsed by Magistrate Shelton on

August 20, 2021, expired after one year on August 20, 2022. Id.

The PSO prescribed the following two pertinent restrictions, the

first relating to the Auditor’s Office and its General Counsel,

and the second related specifically to the petitioner Rollyson:

(1) Respondent [Folse] shall not have verbal contact

with the WVSAO or the General Counsel. All

communication shall be via email or USPS.

(2) Respondent [Folse] shall refrain from contacting,

attempting to contact, or harassing the person(s)

named above [Rollyson], directly or indirectly,

or through third party, regardless of whether

those third parties know of this Order.

Id. at 2.

Plaintiff appealed the PSO to the Kanawha County

Circuit Court which affirmed the PSO after plaintiff failed to

appear for a scheduled hearing. See ECF No. 56-1 at 3. He

appealed to the Supreme Court of Appeals of West Virginia, which

affirmed the circuit court order. J.F. v. G.R., No. 21-0813,

2022 WL 17592199, at *1 (W. Va. Dec. 13, 2022). The Supreme

Court found that the PSO “prohibit[ed] petitioner [Folse] from

contacting, attempting to contact, or harassing respondent

[Rollyson] either directly or indirectly through other state

employees,” and “forbade petitioner from having verbal contact

with various offices associated with respondent's official

position, limiting petitioner's communication with those offices

to e-mail and the United States Postal Service.” Id. Since the

PSO was already then expired, the court denied plaintiff’s

appeal as moot. Id. at 2.

Plaintiff alleges in the operative complaint that

“[d]efendants collectively conspired to file for a [PSO] for the

improper purpose to exclude the [p]laintiff from tax sales, to

bar him from obtaining tax deeds to properties he already

purchased, and to put him in a catch 22 situation where he would

be forced to either violate [the PSO] or lose his investment of

hundreds of thousands of dollars.” ECF No. 32 at ¶ 43. It is

clear from the language of the order, as quoted above, that the

PSO did none of those things.

Plaintiff alleges various counts under 42 U.S.C. §

1983. See id. As to defendant Looney, plaintiff alleges that

Looney “filled out and signed a criminal complaint for the

charge of violating [the PSO].” Id. at ¶ 50. The criminal

complaint, filed with Magistrate Hall on October 19, 2021,

states the grounds for the assertion that Folse had violated the

terms of the PSO as follows:

Defendant [Folse] filed a lawsuit against Deputy

Auditor Rollyson and Auditor McCuskey. Defendant

attempted to notice a multi-day deposition of both

individuals. On October 18, 2021, the Circuit Court

of Ohio County issued an Order quashing the deposition

notice as Defendant’s “ . . . attempt to take these

depositions was undertaken for an improper purpose.”

Later that day, Defendant began posting comments on

State Auditor J.B. McCuskey’s personal Facebook page.

Said comments were numerous and clearly done with the

intent to abuse, harass and violate the terms of the

Final Personal Safety Order entered by Magistrate

Shelton. Further, Defendant has emailed Deputy

Auditor Rollyson on several occasions since the

issuance of the Final PSO in what can be characterized

as an unprofessional and harassing manner.

ECF No. 51-3 at 3. Based on this submission, Kanawha Magistrate

Brent Hall found probable cause for plaintiff’s arrest for

violation of the PSO and issued an arrest warrant. ECF No. 32

at ¶ 51. Plaintiff was arrested at a tax auction sale in Marion

County, and “was held in North Central Regional Jail.” Id. at ¶

54-56. Ultimately, the charges against plaintiff were

voluntarily dismissed by the Kanawha County prosecutor. Id. at

¶ 111.

Plaintiff maintains that there was a lack of probable

cause for the issuance of a warrant, contending the criminal

complaint’s assertions that he “filed a lawsuit,” “attempted to

notice a multi-day deposition,” and “posted comments on State

Auditor J.B. McCuskey’s personal Facebook page” were not

violations. ECF No. 119 at 14. Plaintiff, in his objections,

is silent as to the fourth alleged PSO violation, relating to

the emails sent to defendant Rollyson. See id.

The first two alleged violations relate to a lawsuit

by plaintiff against defendants Rollyson and McCuskey in the

Circuit Court of Ohio County, West Virginia, filed on September

13, 2021, with respect to five tax liens he had purchased and

for which he sought deeds. See Final Order, Folse v. Rollyson

and McCuskey, No. 21-C-149 (Cir. Ct. of Ohio Cnty., W. Va.

January 19, 2022). At the start of that case, before defendants

responsive pleading was due, plaintiff unilaterally filed a

notice of defendants’ depositions, which the circuit judge

ordered quashed. See Order Quashing Notice, Folse, No. 21-C-149

(October 15, 2021). The case was ultimately dismissed four

months later on January 19, 2022, on defendants’ motion. Final

Order, Folse, No. 21-C-149 (January 19, 2022). On June 13,

2023, the dismissal was affirmed by the Supreme Court. See

Folse v. Rollyson, No. 22-0130, 2023 WL 3963835 (W. Va. June 13,

2023).

B.

In this action, on April 1, 2024, plaintiff filed a

“Notice of Deposition of John McCuskey Jr.” ECF No. 75.

Therein, plaintiff sought to schedule the deposition of

defendant McCuskey on a specific date and time but included no

location. Id. Defendants filed, on April 4, 2024, a motion to

quash the noticed deposition, asserting that the notice was

deficient inasmuch as plaintiff unilaterally scheduled the

deposition at a time when defendants were unavailable, and that

plaintiff was seeking to depose defendant McCuskey for an

improper purpose. See ECF No. 78.

Magistrate Judge Tinsley entered an order on February

5, 2025, in which he reviewed the parties’ well-documented and

longstanding history of interpersonal conflict. In view of all

the circumstances, Judge Tinsley aptly concluded that

defendants’ motion to quash should be and was granted insofar as

it sought to quash the deposition of defendant McCuskey by oral

administration under Rule 30, and otherwise denied it so as to

permit plaintiff to depose defendant McCuskey by written

questions pursuant to Rule 31 of the Federal Rules of Civil

Procedure or, alternatively, by written interrogatories pursuant

to Rule 33. ECF No. 101; see also Fed. R. Civ. P. 31, 33.

After plaintiff’s noncompliance with that order, on

April 4, 2025, Magistrate Judge Tinsley granted defendants’

motion entitled “Motion for Enforcement of the Court’s February

5, 2025, Order” (ECF No. 102), finding that plaintiff waived his

opportunity to depose defendant McCuskey and relieving the

defendant from any obligation to respond to the notice of

deposition from plaintiff. ECF No. 104. Plaintiff filed an

objection with the undersigned judge to Magistrate Judge

Tinsley’s order on April 18, 2025. ECF No. 108.

Although it is stated in the PF&R that is the subject

of this memorandum opinion and order that the matter remained

pending in the district court, the undersigned judge, on May 14,

2025, adjudicated plaintiff’s objections to the April 4, 2025,

order, stating that “[p]laintiff substantially prevailed in his

endeavor to depose defendant McCuskey . . . [but] [p]laintiff’s

failure to abide by the procedure to accomplish the deposition

resulted in the consequences described in the April 4, 2025,

order.” ECF No. 116 at 13. The undersigned judge further

noted:

While plaintiff is correct that pro se litigants are

generally afforded leeway regarding litigation errors,

the court notes the well-documented history of

plaintiff filing numerous lawsuits in this District,

his recent argument at the Supreme Court of Appeals of

West Virginia, and his self-identification as a law

student. Accordingly, Judge Tinsley had reason to

conclude that plaintiff’s pro se status should not

justify his failure to abide by the clear directives

of the order of February 5, 2025.

Id. at 17.

C.

Defendants Foreman and Looney (“the police

defendants”) filed their joint motion for summary judgment (ECF

No. 86) on the operative dispositive motion deadline, May 24,

2024. Defendants Connolly, Hopkins, McCuskey, Jr., Nusbaum, and

Rollyson, Jr. (“the auditor defendants”) filed their joint

motion for summary judgment (ECF No. 88) on the same day.

Plaintiff’s responses to the motions were due two weeks later.

See ECF No. 69. On June 10, 2024, plaintiff filed a motion to

extend the response deadline, asking for an indeterminate

extension because “[t]here [had] been no discovery exchanged

between the parties” and “[t]he Plaintiff is not at fault for

the discovery not being exchanged.” ECF No. 95 at 1. Although

the court found “that plaintiff [had] failed to show good cause

for an extension of time to respond,” the magistrate judge

granted plaintiff’s motion “out of an abundance of caution,”

extending the time for plaintiff to respond to April 30, 2025.

ECF No. 105 at 1 (filed April 7, 2025).

On April 30, 2025, nine minutes before plaintiff’s

extended deadline to respond to defendants’ dispositive motions,

plaintiff filed a second motion to extend the response deadline,

asserting “[plaintiff] [had] not started preparing that response

. . . [he] is currently in law school . . . completing academic

assignments and preparing for finals.” ECF No. 111 at 1. The

next day, Magistrate Judge Tinsley, “to fully consider the

requested extension,” ordered that plaintiff “submit a copy of

his law school final examination schedule, signed by either the

Dean or the Registrar . . . no later than . . . May 12, 2025.”

ECF No. 113 at 2. After plaintiff failed to comply with the

court’s order, Magistrate Judge Tinsley denied his second motion

to extend, stating, “[d]efendants filed their subject

dispositive motions . . . nearly a year ago . . . [p]laintiff

has had a meaningful opportunity to prepare a response to the

motions, but has chosen not to do so.” ECF No. 114 at 2.

As earlier noted, Magistrate Judge Tinsley filed his

PF&R on May 14, 2025, ultimately recommending that the

undersigned judge deny plaintiff’s motion for sanctions, grant

defendants’ respective motions for summary judgment and/or

dismiss plaintiff’s claims as a sanction pursuant to Rule 41(b),

and dismiss the case from the court’s active docket. ECF No.

115 at 24–25. As also earlier noted, plaintiff timely filed his

objections thereto on June 2, 2025. ECF No. 119.

II. GOVERNING STANDARD

The court need not review, under a de novo or any

other standard, the factual or legal conclusions of the

magistrate judge as to those portions of the findings and

recommendations to which no objection has been made. See Thomas

v. Arn, 474 U.S. 140 (1985). Failure to timely file objections

constitutes a waiver of de novo review and the plaintiff’s right

to appeal the order of the court. See 28 U.S.C. § 636(b)(1);

see also United States v. Leon-Ramirez, 925 F.3d 177, 181 (4th

Cir. 2019) (parties typically may not “appeal a magistrate

judge’s findings that were not objected to below, as [28 U.S.C.]

§ 636(b) doesn’t require de novo review absent objection”);

Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989).

Upon an objection to the PF&R, the court reviews de

novo only “those portions of the report . . . to which objection

is made.” 28 U.S.C. § 636(b)(1); see also Howard’s Yellow Cabs,

Inc. v. United States, 987 F. Supp. 469, 474 (W.D.N.C. 1997)(“De

novo review is not required when a party makes general or

conclusory objections that do not direct the court to a specific

order . . . .”); United States v. Midgette, 478 F.3d 616, 622

(4th Cir. 2007); Opriano v. Johnson, 687 F.2d 44, 47 (4th Cir.

1982). “Absent a specific and timely filed objection, the court

reviews only for ‘clear error,’ and need not give any

explanation for adopting the [PF&R].” United States v.

Hernandez-Aguilar, 359 F. Supp. 3d 331, 334 (E.D.N.C. 2019).

III. ANALYSIS

A. Plaintiff’s Objections to Denial of His Motion for Sanctions

Plaintiff initially motioned the court for sanctions

related to defendants’ discovery practices in this case “for

[their] refusal to schedule depositions, the filing of a

frivolous motion to quash, and refusing to respond to written

discovery.” ECF No. 107 (filed April 18, 2025) at 1. Plaintiff

expresses the same alleged concerns in his objections. See ECF

No. 119 (“The reason why discovery did not commence is not the

fault of [plaintiff] but rather the Defendants’ fault as they

refused to schedule depositions or answer any written

discovery.”).

Magistrate Judge Tinsley duly states that “discovery

in this case closed more than one year ago, on May 3, 2024, . .

. plaintiff did not file any timely motion to compel

[defendants] to respond to discovery he claims to have served .

. . .” ECF No. 115 at 14. Indeed, plaintiff did not file any

discovery motions alerting the court to the alleged deficiencies

until his April 18, 2025, motion for sanctions, nor did he file

any timely motions attempting to extend or otherwise modify

discovery.

In regard to defendant McCuskey’s deposition, as

discussed above, plaintiff substantially prevailed in procuring

the deposition — by written question or by written interrogatory

— but failed to follow the procedure clearly set forth by

Magistrate Judge Tinsley and the designated, applicable Rules of

Civil Procedure. In regard to the deposition of defendant

Rollyson, Magistrate Judge Tinsley correctly notes that “the

record is devoid of any indication that Rollyson was served with

proper notice . . . .” Id. at 15. For the reasons found by

Magistrate Judge Tinsley, plaintiff’s objections to the denial

of his motion for sanctions are denied.

B. Plaintiff’s Objections Regarding Summary Judgment

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “Material” facts are those necessary to

establish the elements of a party’s cause of action. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see

also The News & Observer Publ’g Co. v. Raleigh-Durham Airport

Auth., 597 F.3d 570, 576 (4th Cir. 2010). A dispute of material

facts is “genuine” if, in viewing the record and all reasonable

inferences drawn therefrom in the light most favorable to the

non-moving party, a reasonable fact finder could return a

verdict for the non-moving party. See Anderson, 477 U.S. at

248.

The moving party is entitled to summary judgment if

the record as a whole could not lead a trier of fact to find for

the non-moving party. See Williams v. Griffin, 952 F.2d 820,

823 (4th Cir. 1991). Further, a non-movant who “fails to make a

showing sufficient to establish the existence of an element

essential to [his] case, and on which [he] will bear the burden

of proof at trial” loses at the summary judgment stage. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986).

1. The Capitol Police Defendants

Magistrate Judge Tinsley recognizes that the relevant

arrest underlying plaintiff’s claims “was carried out based on

an arrest warrant issued by [] Kanawha County Magistrate [Brent

Hall], who expressly found that there was probable cause to

arrest the Plaintiff.” ECF No. 115 at 16. Magistrate Hall

found probable cause based on facts supplied by defendant Looney

in a criminal complaint. Id. at 4.

Magistrate Judge Tinsley states that in contrast,

plaintiff “has not submitted any evidence from which a

reasonable jury could conclude that his arrest was unsupported

by probable cause.” Id. at 16. Thus, Magistrate Judge Tinsley

recommends granting the police defendants’ motion for summary

judgment as “[they] have met their burden of demonstrating the

absence of material fact with respect to the issue of probable

cause.” Id. (citing Somers v. Devine, 132 F.4th 689, 697 (4th

Cir. 2025) (“[T]he presence of probable cause defeats

retaliatory arrest, unlawful arrest, and malicious prosecutions

claims alike.”)). The police defendants in their motion for

summary judgment assert that they are entitled to qualified

immunity from plaintiff’s constitutional claims because their

“actions were based on probable cause.” ECF No. 87 at 7.

Plaintiff objects to Magistrate Judge Tinsley’s

analysis because “a magistrate’s finding of probable cause is

only a factor in evaluating whether there was actually probable

cause for an arrest in the context of a malicious prosecution

claim.” ECF No. 119 at 14 (citing Hupp v. Cook, 931 F.3d 307,

324 (4th Cir. 2019)). Plaintiff asserts:

[I]t is not disputed that the warrant was obtained by

one of the Capitol Police Defendants for violating a

Personal Safety Order. The conduct alleged was that

Folse “filed a lawsuit,” “attempted to notice a multi-

day deposition,” and “posted comments on State Auditor

J.B. McCuskey’s personal Facebook page.” Although

these specific allegations are largely accurate, they

could not possibly support probable cause for

violating a [PSO] which was granted to Defendant

Rollyson. The officer made false statements that

these actions violated the [PSO] when they did not.

Id. (emphasis added).

The Fourth Circuit, in the Hupp case on which

plaintiff relies, opined that “a defendant to a malicious

prosecution claim is not absolved from liability when the

magistrate's probable-cause finding is predicated solely on a

police officer's false statements.” Hupp, 931 F.3d at 324

(internal quotations omitted). In Hupp, there was evidence

indicating that the officer defendant misrepresented facts

contained in the relevant criminal complaint. Id. at 325.

The circumstances in Hupp are readily distinguishable

from the circumstances in this case. First, plaintiff is not

arguing that the police defendants misrepresented the factual

circumstances culminating in the arrest of plaintiff; rather, he

contends that one of them, Officer Looney, “made false

statements that [plaintiff’s] actions violated the [PSO] . . .

.” ECF No. 119 at 14. Plaintiff, then, concedes that the state

magistrate who issued the warrant was not operating on false

statements made by Officer Looney with respect to the factual

circumstances culminating in plaintiff’s arrest. Id. The state

magistrate in turn made an independent determination that the

relevant PSO was violated based on the factual circumstances

alleged by Officer Looney.

Further, plaintiff does not offer any evidence from

which a jury could conclude that Officer Looney made false

statements in regard to the factual circumstances resulting in

his arrest. Thus, there is no genuine dispute as to any

material fact on the matter.

“Probable cause is determined by a totality-of-the-

circumstances approach. The inquiry turns on two factors: the

suspect's conduct as known to the officer, and the contours of

the offense thought to be committed by that conduct.” Hupp, 931

F.3d at 318 (internal citations and quotations omitted). The

court looks to “whether a reasonably prudent officer with

[available information] would have thought that probable cause

existed for the arrest.” Id.

On October 19, 2021, plaintiff was deemed by

Magistrate Hall to be in violation of West Virginia Code § 53-8-

11(a), which provides that: “An individual who fails to comply

with the relief granted in a temporary personal safety order or

a final personal safety order entered pursuant to this article

is guilty of a misdemeanor . . . .” W. Va. Code § 53-8-11(a).

The PSO specifically prevented plaintiff from “contacting,

attempting to contact, or harassing [defendant Rollyson],

directly or indirectly, or through third part[ies] . . . .” ECF

No. 22-3 at 2. The uncontested facts presented in the criminal

complaint can be distilled into four alleged violations:

(1) Plaintiff filed a lawsuit in the Circuit Court of

Ohio County against defendants Rollyson and

McCuskey.

(2) Plaintiff filed a notice in that lawsuit, which

was quashed by order of the circuit court,

unilaterally noticing the depositions of

defendants Rollyson and McCuskey.

(3) Plaintiff posted “numerous” comments on defendant

McCuskey’s personal Facebook page. Defendant

Looney characterized the comments as posted “with

the intent to abuse, harass and violate” the PSO.

(4) Plaintiff sent several emails directly to

defendant Rollyson. Defendant Looney

characterized the correspondence as “harassing.”

See ECF No. 51-3 at 3.

First, the court gives no weight to the mere fact

plaintiff filed a lawsuit against defendants Rollyson and

McCuskey while the PSO was active. Nothing in the PSO precluded

plaintiff from the use of the courts to seek redress of

plaintiff’s claims. However, it is noted that the state circuit

court in the relevant lawsuit granted a motion to quash

plaintiff’s unilaterally scheduled depositions of defendants

Rollyson and McCuskey. See Order Quashing Notice, Folse, No.

21-C-149 (October 15, 2021). Plaintiff attempted to schedule

these depositions through a “Notice of Taking of Deposition”

filed before the defendants’ responsive pleading was due. Id.

at 2. While plaintiff’s premature move to take those

depositions was a procedural error on his part, it is noted that

the circuit court, acting by the Honorable Michael Olejasz,

stated that on September 29, 2021, prior to the plaintiff’s

deposition notice filing, plaintiff sent an email “demanding

that Mr. Rollyson obtain an affidavit from a third-party process

server in an unrelated Federal Court lawsuit.” Id. at 2–3. The

Ohio Circuit Court granted defendants’ motion to quash, noting:

In that email, [plaintiff] states that if the

Auditor’s Office does not cave to that demand that “I

promise that if I have to depose the process server

and do formal discovery to get this information that I

will repay the favor to you in this litigation.”

[Plaintiff] is referencing the current lawsuit before

this Court. [Plaintiff] goes on to state “[h]ow does

a three day long deposition of you and McCuskey

sound?” Based on [plaintiff’s] own statements, these

depositions were noticed for an improper purpose.

Id. at 3.

On October 17, 2021, plaintiff sent an email directly

to defendant Rollyson regarding the order, asserting, “You and

McCuskey got out of the deposition by getting lucky. Not all

judges are as corrupt as Olejasz.” ECF No. 1-1 at 13.

Indeed, plaintiff sent several emails directly to

defendant Rollyson during the PSO’s active period. See id. An

email sent to defendant Rollyson, on August 24, 2021, just four

days after entry of the PSO, stated, “I am also advising you

that you are not to call me or I will call the police and report

you for phone harassment. You and your staff have called me

multiple times and used profanity, mocked me, and tricked me

into meeting you in person so that you could assault me.” ECF

No. 1-1 at 9. A September 12, 2021, email sent to defendant

Rollyson read, “I am also sending this to McCuskey senior.

Hopefully, JB will be embarrassed for his father to know what is

going on in his office. He’s supposed to be a Republican that

is against silly bureaucrats like you.” Id. at 21. A September

28, 2021, email to defendant Rollyson asserted, “[Y]ou have

taken outrageous actions against me including filing a frivolous

personal safety order and claimed that I was going to come to

your house and assault your family.” Id. at 3.

Plaintiff also does not contest posting “numerous”

comments on the Facebook page of defendant McCuskey -- who was

undoubtably a “third party” as contemplated in the PSO -- during

the PSO’s active period. The criminal complaint ascribes an

abusive, harassing nature to the comments, and plaintiff

provides no evidence at the summary judgment stage to the

contrary.

The sheer volume of these email communications by

plaintiff to defendant Rollyson during the initial two months of

the one-year PSO amply support Officer Looney’s affidavit

asserting “several” emails by plaintiff to defendant Rollyson,

each of which was in direct violation of the PSO.

With respect to the face of the criminal complaint,

the court notes that mere conclusory allegations of plaintiff’s

violations do not, on their own merit, suffice for probable

cause. Giordenello v. United States, 357 U.S. 480, 486, 78 S.

Ct. 1245, 1250, 2 L. Ed. 2d 1503 (1958) (“[The magistrate]

should not accept without question the complainant's mere

conclusion that the person whose arrest is sought has committed

a crime.”); United States v. Wilhelm, 80 F.3d 116, 119 (4th Cir.

1996) (“Appellate courts should pay great deference to

magistrates' findings of probable cause. But this does not mean

that warrants based on conclusory allegations should be upheld .

. . .”) (internal citations and quotations omitted).

Defendant Looney’s characterization of the Facebook

comments as posted “with the intent to abuse, harass and

violate” the PSO and his characterization of plaintiff’s direct

emails to defendant Rollyson as “harassing” are conclusory,

though the emails warrant that allegation.

However, it is also not required “that each factual

allegation which the affiant puts forth [] be independently

documented, or that each and every fact which contributed to his

conclusions be spelled out in the complaint.” Jaben v. United

States, 381 U.S. 214, 224, 85 S. Ct. 1365, 1371, 14 L. Ed. 2d

345 (1965). “It [is] simply require[d] that enough information

be presented to the [magistrate] to enable him to make the

judgment that the charges are not capricious and are

sufficiently supported to justify bringing into play the further

steps of the criminal process.” Id.

Defendant Looney’s conclusory characterizations are

not the entirety of the criminal complaint. The detail provided

in his complaint evidences defendant Looney’s personal knowledge

of the factual circumstances, consistent with probable cause

jurisprudence. See Giordenello, 357 U.S. at 486, 78 S. Ct. at

1250 (“[Complaining officer]'s testimony at the suppression

hearing clearly showed that he had no personal knowledge of the

matters on which his charge was based.”). Thus, enough

information was presented to the magistrate for him to

appropriately find that the “charges [were] not capricious and

[were] sufficiently supported to justify bringing into play the

further steps of the criminal process.” Jaben, 381 U.S. at 224,

85 S. Ct. at 1371. That the criminal process did not proceed

past the plaintiff’s arrest is of no moment to the determination

of probable cause.

Indeed, without regard to defendant Looney’s

conclusory characterizations or the other three alleged

violations, that plaintiff sent several email correspondences

directly to defendant Rollyson was itself a clear violation of

the PSO which specifically barred plaintiff from “contacting

[or] attempting to contact” Rollyson. Thus, probable cause

existed for plaintiff’s arrest.

In the presence of that probable cause, the police

defendants, as they assert, are entitled to qualified immunity

from plaintiff’s constitutional claims:

Officers are immune from liability insofar as their

conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person

would have been known.

. . . .

[The analysis] turns on the question of whether [the

Officer] was objectively reasonable in believing that

probable cause existed to arrest [plaintiff]. Indeed,

the presence of probable cause defeats retaliatory

arrest, unlawful arrest, and malicious prosecutions

claims alike.

Somers, 132 F.4th at 696–697 (internal citations and quotations

omitted).

Inasmuch as probable cause did exist for plaintiff’s

arrest, the police defendants are entitled to qualified immunity

and plaintiff’s objections thereto are overruled.

2. The Auditor Defendants

Magistrate Judge Tinsley states that plaintiff failed

to submit “any evidence that the Auditor Defendants had any role

in having [plaintiff’s] arrest warrant issued or played any role

in the arrest or prosecution of the Plaintiff . . . .” ECF No.

115 at 17. Further, plaintiff “ha[d] not submitted any evidence

from which a reasonable jury could conclude that his arrest was

unsupported by probable cause.” Id.

Plaintiff objects to Magistrate Judge Tinsley’s

analysis because “it is simply not logical to assume that the

alleged victim in a case had no role in procuring an arrest . .

. it can be inferred that, at the least, Defendant McCuskey

played a role in procuring the arrest.” ECF No. 119 at 15.

Plaintiff also asserts that “[defendants] have provided no

evidence to support the position that the Auditor Defendants

played no role in having [plaintiff] arrested . . . [t]herefore,

the burden has not shifted to plaintiff to prove that there is a

genuine dispute of material facts.” Id.

Inasmuch as the court has determined that probable

cause did exist for plaintiff’s arrest, there has been found no

constitutional violation in which the auditor defendants could

have participated. Thus, plaintiff’s objections thereto are

overruled.

C. Plaintiff’s Remaining Claims

Plaintiff alleges, in addition to his constitutional

claims, the state law claim of intentional infliction of

emotional distress (“IIED”). See ECF No. 32 at 23. Plaintiff

asserts that defendants caused him emotional distress “by

conjuring up the plot to have the [p]laintiff arrested without

probable cause.” Id. at ¶ 118.

To establish a West Virginia claim for IIED, plaintiff

must establish, along with three other elements, “that the

defendant's conduct was atrocious, intolerable, and so extreme

and outrageous as to exceed the bounds of decency . . . .”

Hatfield v. Health Mgmt. Assocs. of W. Virginia, 223 W. Va. 259,

262, 672 S.E.2d 395, 398 (2008) (internal citations and

quotations omitted).

Inasmuch as the court has found that probable cause

did exist for plaintiff’s arrest, defendants’ routine

facilitation of plaintiff’s arrest for which there was probable

cause cannot rise to the level of “extreme and outrageous”

conduct required to prevail on a claim of IIED.

Plaintiff also seeks declaratory and injunctive relief

relating to the PSO and the scope of its restrictions. See ECF

No. 32 at ¶¶ 139–147. These requests are moot, inasmuch as the

PSO is no longer active.

In view of the foregoing, there is no need to address

the additional ground presented by the magistrate judge for

dismissal of plaintiff’s complaint as a sanction based on

plaintiff’s misconduct during this proceeding.

IV. CONCLUSION

Accordingly, it is ORDERED that:

(1) The plaintiff’s objections (ECF No. 119) be, and hereby

are, OVERRULED;

(2) The findings and recommendation in the Magistrate

Judge’s Proposed Findings and Recommendation (ECF No.

115) as set forth above be, and hereby are, ADOPTED by

the court and incorporated herein;

(3) Plaintiff’s pro se “Motion for Discovery Sanctions

Against Defendants Rollyson and McCuskey” (ECF No.

107) be, and hereby is, DENIED;

(4) Defendants Kevin Foreman and Wallace Looney’s “Motion

for Summary Judgment” (ECF No. 86) be, and hereby is,

GRANTED;

(5) Defendants John B. McCuskey, Jr., G. Russell Rollyson,

Jr., Lisa Hopkins, Stephen Connolly, and Michael

Nusbaum’s “Defendants’ Motion for Summary Judgment”

(ECF No. 88) be, and hereby is, GRANTED; and

(6) This action be, and hereby is, DISMISSED from the

docket of this court.

The Clerk is directed to transmit copies of this order

to all counsel of record, any unrepresented parties, and the

United States Magistrate Judge.

ENTER: October 22, 2025

Jo . Copenhaver, Jr.

Senior United States District Judge

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