United States District Court, S.D. West Virginia, Charleston Division
PHILIP J. TOMASHEK, II
RALEIGH COUNTY EMERGENCY OPERATING CENTER, et al.,
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is Motion of West Virginia Regional Jail and
Correctional Facility Authority, David A. Farmer, Southern
Regional Jail, Michael Francis, and John Doe Correctional
Officers to Dismiss [ECF No. 15]. The plaintiff filed a
response [ECF No. 24], and the defendants filed a reply [ECF
No. 31]. This matter is now ripe for adjudication. For the
following reasons, the Motion is GRANTED in
part and DENIED in part.
the early morning of November 22, 2014, the plaintiff's
wife called 911 and 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.”
Not. Removal Ex. A Part 1, at ¶ 17 (“Am.
Compl.”) [ECF No. 1-1]. A short time later, the
plaintiff's wife called 911 again and canceled the
request for medical assistance, advising the dispatcher she
was taking the plaintiff to the hospital herself.
Id. ¶ 18.
the wife's second call, the dispatcher dispatched two
detectives, A.S. Meadows and J.D. Johnson, to the
plaintiff's home. Id. ¶¶ 19-20. When
they arrived, the plaintiff was closing the driveway gate,
and his wife and their daughters were in the vehicle, already
en route to take the plaintiff to the hospital. Id.
¶ 20. One of the officers asked the plaintiff 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. ¶¶
22-24. The other officer then tased and pepper sprayed him.
Id. ¶ 25.
plaintiff was arrested on two counts of assault of an officer
and obstructing. Id. ¶ 28. The plaintiff was
later taken to the Southern Regional Jail (“SRJ”)
where he was accepted into custody by one or more
correctional officers. Id. ¶ 31. During his
detention at SRJ, “he experienced severe chest pains, a
racing heart, and excruciating muscle pains.”
Id. ¶¶ 31-32.“On one or more
occasion[s] while detained, he was unnecessarily restrained
in a manner causing extreme pain, discomfort, emotional
distress, and fear.” Id. ¶ 31.
plaintiff made multiple requests for medical care to the
correctional officers as well as other officials.
Id. ¶ 32. The plaintiff's wife also
“called SRJ on numerous occasions to stress her concern
for his health and his need for immediate medical
care.” Id. The evening after he was arrested,
the plaintiff was transported to the hospital. Id.
¶ 37. He was admitted there for ten days and diagnosed
with encephalopathy, acute liver injury, and acute
rhabdomyolysis. Id. ¶ 38.
assault and obstruction charges brought against the plaintiff
were eventually dropped. Id. ¶ 41. Thereafter,
the plaintiff brought this civil action against several
parties. The defendants that are relevant to this motion
include: the West Virginia Regional Jail and Correctional
Facility Authority (“WVRJCFA”), SRJ, David A.
Farmer, Michael Francis, and John Doe Correctional Officers,
who are all sued in both their individual and official
defendants move for dismissal with prejudice pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief can be granted. Mot. WVRJCFRA,
Farmer, SRJ, Francis, & John Doe Corr. Officers Dismiss 1
(“Defs.' Mot.”) [ECF No. 15].
defendants attached one exhibit to their motion. Id.
Ex A [ECF No. 15-1]. Under Federal Rule of Civil Procedure
Rule 12(d), “[i]f, on a motion under Rule 12(b)(6) . .
. matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.” The mere submission or
service of extraneous materials, however, does not by itself
convert a motion to dismiss into a motion for summary
judgment. Finley Lines Joint Protective Bd. Unit 200 v.
Norfolk S. Corp., 109 F.3d 993, 995-96 (4th Cir. 1997)
(citations omitted) (internal quotation marks omitted).
Instead, a 12(b)(6) motion supported by extraneous materials
is only regarded as one for summary judgment if the district
court converts “the motion by indicating that it will
not exclude from its consideration of the motion the
supporting extraneous materials.” Id. at 997.
Thus, it is within the court's discretion to consider the
matters outside of the pleadings, or “wholly ignore
such attachments and rel[y] exclusively on the
complaint.” Covey v. Assessor of Ohio Cnty.,
777 F.3d 186, 193 n.7 (4th Cir. 2015). Here, the court
declines to consider the exhibit attached to the
defendants' motion. Therefore, the defendants' motion
will be regarded as one to dismiss.
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)). When “faced with a Rule 12(b)(6)
motion to dismiss . . . courts must . . . accept all factual
allegations in the complaint as true.” Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
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.'”
Ashcroft, 556 U.S. at 678 (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.
Unnamed Correctional Officers
defendants argue that the plaintiff's claims against
unnamed John Doe correctional officers must be dismissed
because “[p]leading a claim against such unnamed
parties is in direct contravention to pleading
standards.” Mem. Law Supp. 9 (“Defs.'
Mem.”) [ECF No. 16]. The defendants rely mainly on
Price v. Marsh, No. 2:12-cv-05442, 2013 WL 5409811
(S.D. W.Va. Sept. 25, 2013). In Price, the plaintiff
asked the court for leave to amend his complaint in order to
add the identity of defendants who were previously
unidentified. 2013 WL 5409811, at *2. The court denied the
plaintiff's motion, finding that the plaintiff was not
diligent in seeking leave to amend. Id. at *3. The
court went on to dismiss the counts against the unnamed
defendants, holding that judgment cannot be entered against
an unnamed party. Id. at *4-6.
Judge Chambers explained in Sweat v. West Virginia,
No. 3:16-5252, 2016 WL 7422678, at *3 (S.D. W.Va. Dec. 22,
2016), the holding in Price is not applicable in
cases that are “still in the beginning stages with time
for [p]laintiffs to discover” who the unnamed
defendants are. “This Court allows John Doe defendants
if the names can be found in discovery and complaints are
timely amended.” Id.
the plaintiff has explained that he has “had little way
of discovering exactly what correctional officers were
responsible for” the actions at issue in his complaint.
Philip J. Tomashek II's Omnibus Resp. Opp'n to
Defs.' Mots. Summ. J. (“Pl.'s Resp.”) 8
[ECF No. 24]. The plaintiff is entitled to the opportunity to
discover who these defendants are. If after adequate time the
plaintiff fails to amend his complaint, then dismissal may be
proper. For now, however, dismissal is not warranted based on
the plaintiff's failure to name specific correctional
officers in his complaint.