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Tomashek v. Raleigh County Emergency Operating Center

United States District Court, S.D. West Virginia, Charleston Division

November 14, 2017

PHILIP J. TOMASHEK, II
v.
RALEIGH COUNTY EMERGENCY OPERATING CENTER, et al.,

          MEMORANDUM OPINION ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE

         I. Introduction

         Pending before the court is Defendants Raleigh County Emergency Operating Center, John Zilinski, and Jane Doe Dispatcher's Motion to Dismiss [ECF No. 12]. The plaintiff filed a response [ECF No. 24], and the defendants filed a reply [ECF No. 28]. This matter is now ripe for adjudication. For the following reasons, the Motion is GRANTED.

         II. Factual and Procedural History

         During the early morning of November 22, 2014, the plaintiff's wife called the Raleigh County Emergency Operating Center (“RCEOC”).[1] Not. Removal Ex. A Part 1, at 8 (“Am. Compl.”) [ECF No. 1-1]. The plaintiff's wife spoke to defendant Jane Doe who was a dispatcher for RCEOC. Id. The plaintiff's wife requested that the dispatcher send an ambulance to transport the plaintiff, Philip J. Thomashek, II, to the hospital because he “was exhibiting unusual behavioral and mood changes and she feared he suffered an injury to his head or inadvertent poisoning from the use of volatile automotive paint and cleaners in his garage.” Id. She told the dispatcher that she could not take him herself “because she believed, at the time, that her own vehicle was stuck in their driveway.” Id. A short time later, the plaintiff's wife called RCEOC again and canceled the request for medical assistance, advising the dispatcher she was able to utilize her own vehicle and was taking the plaintiff to the hospital herself. Id.

         Despite the wife's second call, the dispatcher dispatched two detectives, A.S. Meadows and J.D. Johnson. Id. When they arrived, “the [p]laintiff was closing the driveway gate and his wife and their young daughters were in the vehicle, already on route to take the [p]laintiff to the hospital for emergency medical treatment.” Id. According to the plaintiff, one of the officers asked him to get into his vehicle, and when he refused, the officer grabbed him “twisted his arm behind his back and painfully bent his fingers back.” Id. The other officer then tased and pepper sprayed him. Id.

         The plaintiff was arrested on two counts of assault on an officer and obstructing. Id. During this period, an ambulance never arrived. After a series of events that are not relevant to the particular issues in this motion, the plaintiff was taken to the emergency room. Id. at 8. The plaintiff was “diagnosed with encephalopathy, acute liver injury, and acute rhabdomyolysis.” Id.

         On March 16, 2017, the plaintiff filed this action against RCEOC, John Zilinski, Jane Doe Dispatcher, Raleigh County Sherriff's Office, Robert Steven Tanner, A.S. Meadows, J.D. Johnson, the County Commission of Raleigh County, the West Virginia Regional Jail & Correctional Facility Authority, David A. Farmer, Southern Regional Jail, Michael Francis, and John Doe Correctional Officers. Id. at 1. On April 12, 2017, RCEOC, John Zilinski, and Jane Doe Dispatcher filed this motion to dismiss.[2] Defs. Raleigh County Emergency Operating Center, John Zilinski, & Jane Doe Dispatcher's Mot. Dismiss 1 (“Defs.' Mot.”) [ECF No. 12]. While the plaintiff's complaint has twenty counts, these defendants are only named in Counts One and Two. Am. Compl. 9-11. Count One alleges that defendant Jane Doe was negligent, and Count Two alleges that defendants Zilinski and RCEOC[3] were negligent. Id. at 9-10.

         III. Legal Standard

         A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a complaint or pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This standard “does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). To achieve facial plausibility, the plaintiff must plead facts allowing the court to draw the reasonable inference that the defendant is liable, moving the claim beyond the realm of mere possibility. Id. Mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action” are insufficient. Twombly, 550 U.S. at 555.

         IV. Discussion

         Under W.Va. Code § 24-6-8,

[a] public agency or a telephone company participating in an emergency telephone system or a county which has established an enhanced emergency telephone system, and any officer, agent or employee of the public agency, telephone company or county is not liable for damages in a civil action for injuries, death or loss to persons or property arising from any act or omission, except willful or wanton misconduct, in connection with . . . participating in the operation of an emergency telephone system or an enhanced emergency telephone system pursuant to this article.

         RCEOC “is an instrumentality of Raleigh County, West Virginia and was, at all times relevant hereto, the enhanced emergency telephone system for Raleigh County, West Virginia.” Am. Compl. 2. Defendants Jane Doe and Zilinski were both employees of RCEOC. Thus, they are all entitled to immunity ...


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