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Tomashek v. Raleigh County Emergency Operating Center

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

January 23, 2018

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

          MEMORANDUM OPINION AND ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE

         I. Introduction

         Pending 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.

         II. Factual Background

         During 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.

         Despite 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.

         Thereafter, 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.” Id.

         The 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.

         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. 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.

         The 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”).

         III. Legal Standard

         The 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, 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, 322 (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.'” 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.

         IV. Discussion

         a. The Plaintiff's Concessions

         In his 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 ...


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