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 Defendants Raleigh County Sheriff's
Office, Robert Steven Tanner, A.S. Meadows, J.D. Johnson and
the Raleigh County Commission's Motion to Dismiss
Plaintiff's Complaint [ECF No. 10]. The plaintiff filed a
response [ECF No. 24], and the defendants filed a reply [ECF
No. 27]. 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, 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
Raleigh County Sherriff's Office officers, 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. The plaintiff's
wife explained to the senior officer that “she was
taking the plaintiff to the hospital because she believed
that he had suffered head trauma or poisoning that was
causing the [p]laintiff to exhibit an altered mental
state.” Id. ¶ 21.
the junior officer asked the plaintiff to get into the
officers' vehicle. Id. ¶ 22. The plaintiff
“who was experiencing severe claustrophobia as a result
of his medical condition and believing an ambulance was on
route as requested, asked to wait outside in the open rather
than in the officers' vehicle.” Id. ¶
23. “Even though the [p]laintiff had done nothing
wrong” the junior officer grabbed him, “twisted
his arm behind his back and painfully bent his fingers
back.” Id. ¶ 24. “The senior
officer then got involved and the officers used a taser on
the [p]laintiff multiple times around his heart and used
pepper spray on him, which exasperated the [p]laintiff's
asthma.” Id. ¶ 25. The officers also
“repeatedly slammed the [p]laintiff's head into the
pavement and punched him in the face and head.”
plaintiff was arrested on two counts of assault on an officer
and obstructing. Id. ¶ 28. Before the officers
left with the plaintiff, the plaintiff's wife again asked
the officers to take him to the hospital for treatment.
Id. ¶ 27. The officers advised her that they
would be taking the plaintiff to jail, not the hospital.
Id. ¶ 28. The officers then took the
plaintiff's eyeglasses and rescue inhaler from him and
gave them to his wife. Id. ¶ 29.
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. The 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. ¶ 36. 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: (1) Robert S. Tanner, the Sherriff of Raleigh
County; (2) A.S. Meadows, an officer with the Raleigh County
Sheriff's Office; (3) J.D. Johnson, an officer with the
Raleigh County Sheriff's Office; (4) the Raleigh County
Sheriff's Office; and (5) the County Commission of
Raleigh County (“RCC”).
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. Defs.' Raleigh
County Sheriff's Office, Robert Steven Tanner, A.S.
Meadors, J.D. Johnson and the Raleigh County Commission's
Mot. Dismiss Pl.'s Compl. (“Defs.' Mot.”)
[ECF No. 10]. 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,
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, 322
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.'”
Iqbal, 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.
The Plaintiff's Concessions
response to the defendants' motion, the plaintiff
concedes that his claim for malicious prosecution in Count
Thirteen is barred by the statute of limitations. Philip J.
Tomashek II's Resp. Opp'n to Defs.' Mots. Summ.
J. 4 [ECF No. 24]. He also concedes his assault claim ...