Tomashek v. Raleigh County Emergency Operating Center et al

Filing 133

MEMORANDUM OPINION AND ORDER The 117 RENEWED MOTION by County Commission of Raleigh County, J. D. Johnson, A. S. Meadows, Robert Steven Tanner for Summary Judgment is GRANTED in part and DENIED in part; defendants' Motion is GRANTED as to Coun ts Two (Negligence), Four (Negligence), and Eighteen (Deliberate Indifference); and defendants' Motion is DENIED as to Counts Three (Negligence), Seven (Outrage), Twelve (Battery), Fourteen (Excessive Force), and Sixteen (Procedural Due Process). Signed by Judge Joseph R. Goodwin on 9/26/2018. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
PHILIP J. TOMASHEK, II
Plaintiff,
v.

CIVIL ACTION NO. 2:17-cv-01904

RALEIGH COUNTY EMERGENCY
OPERATING CENTER, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
I.

Introduction
Pending before the court is Defendants Robert Steven Tanner, A.S. Meadows,

J.D. Johnson, and the Raleigh County Commission’s Renewed Motion for Summary
Judgment [ECF No. 117]. The plaintiff filed a response [ECF No. 122], and the
defendants filed a reply [ECF No. 123]. This matter is now ripe for adjudication. For
the following reasons, the Motion is GRANTED in part and DENIED in part. The
principal legal question before the court is one of first impression in this Circuit: Does

Heck v. Humphrey, 512 U.S. 477 (1994), bar § 1983 claims following a plaintiff’s
successful completion of a pretrial diversion program? I find that it does not.
II.

Background
The parties agree that 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. Tomashek, II, to the hospital. The events that
followed are almost entirely in dispute.
The plaintiff contends that his wife explained to the dispatcher that he needed
an ambulance because he was behaving erratically. Pl.’s Resp. to Defs.’ Mot. for
Summ. J. (“Pl.’s Resp.”) Ex. B, at 70 [ECF No. 122-2]. The plaintiff alleges that
shortly thereafter, his wife again called 911, cancelling the request for medical
assistance and advising the dispatcher that she was taking the plaintiff to the
hospital. Id. at 78–79.
The plaintiff contends that despite his wife’s second call, the dispatcher sent
two Raleigh County Sheriff’s Office officers, A.S. Meadows and J.D. Johnson, to the
plaintiff’s home with lights and sirens. Pl.’s Resp. Ex. E, at 24 [ECF No. 122-5]. The
officers ultimately intercepted the plaintiff before he could leave for the hospital.
Through deposition testimony, the parties provide different accounts of what
happened next.
The plaintiff claims that he was walking toward a guardrail to sit when an
altercation with the officers began. Pl.’s Resp. Ex. A, at 70 [ECF No. 122-1]. The
plaintiff recalls the officers asking him to sit in the back of the police car, though the
plaintiff claims he had done nothing wrong. Id. at 75–78. According to the plaintiff,
as he was walking to the guardrail, “all of a sudden, [his] arm was being twisted
behind [him], and [his] fingers were being bent and crunched” by one of the officers.

Id. at 77. The plaintiff asserts that he saw the officer reach for him and reflexively
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raised his hand to block the officer’s reach. Id. All the plaintiff remembers happening
next is being “beaten” and taken to the ground. Id. The officers then used a taser and
pepper spray. Id. at 78.
The officers tell a different story. The officers contend that they believed they
were responding to a possible domestic violence situation and that the plaintiff posed
an immediate threat to the officers’ safety. Defs.’ Renewed Mot. for Summ. J. (“Defs.’
Mot.”) Ex. F, at 15 [ECF No. 117-6]. Moreover, according to Deputy Johnson, the
plaintiff began aggressively “yelling and pointing” at his wife soon after their arrival.

Id. at 21. Deputy Johnson contends that the plaintiff ignored and refused the officers’
commands. Id. at 23. Deputy Johnson then purportedly asked the plaintiff to place
his hands on the police car in order to detain the plaintiff with handcuffs. Id. The
plaintiff allegedly resisted. Id. at 25–32. When asked what happened next, Deputy
Johnson stated that he did not “exactly remember” how the plaintiff ended up on the
ground. Id. at 32. Nonetheless, Deputy Johnson claims that while the plaintiff was
on the ground, the plaintiff grabbed the other officer, Deputy Meadows. Id. at 32–33.
It was at this point that Deputy Johnson instructed Deputy Meadows to retrieve a
taser and deploy a stun to the plaintiff’s thigh. Id. at 33. The plaintiff was then
arrested on two counts of battery on a police officer and obstructing an officer.
The parties agree that, at the officers’ direction, an emergency medical
technician examined the plaintiff at the Raleigh County Sheriff’s Office. The plaintiff
was then taken into custody at Southern Regional Jail (“SRJ”).
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The next evening, he was transported to the hospital, where he was admitted
for ten days and allegedly diagnosed with encephalopathy, acute liver injury, and
acute rhabdomyolysis. Compl. ¶ 38 [ECF No. 1]. On December 8, 2014, after his
release from the hospital, the plaintiff was arraigned on two counts of battery on a
police officer and obstructing an officer. Id. ¶ 40.
The plaintiff later entered into a pretrial diversion agreement. Defs.’ Mot. Ex.
I [ECF No. 117-9]. The plaintiff successfully completed the 90-day diversion program,
and all the charges against him were dismissed. Defs.’ Mot. Ex. E [ECF No. 117-5].
Thereafter, the plaintiff brought this civil action, filing a twenty-count
complaint against several parties. Robert Steven Tanner, A.S. Meadows, J.D.
Johnson, and the Raleigh County Commission (“RCC”) are the only remaining
defendants. Counts Two (Negligence), Three (Negligence), Four (Negligence), Seven
(Outrage), Twelve (Battery), Fourteen (Excessive Force), Sixteen (Procedural Due
Process), and Eighteen (Deliberate Indifference) remain.
III.

Legal Standard

To obtain summary judgment, the moving party must show that there is no
genuine dispute as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). “Facts are ‘material’ when they
might affect the outcome of the case.” Lester v. Gilbert, 85 F. Supp. 3d 851, 857 (S.D.
W. Va. 2015) (quoting News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth.,
597 F.3d 570, 576 (4th Cir. 2010)). “A genuine issue of material fact exists if . . . a
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reasonable fact-finder could return a verdict for the non-movant.” Runyon v. Hannah,
No. 2:12-1394, 2013 WL 2151235, at *2 (S.D. W. Va. May 16, 2013) (citations omitted);

see Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991) (“Disposition by summary
judgment is appropriate . . . where the record as a whole could not lead a rational
trier of fact to find for the non-movant.”). The moving party bears the burden of
showing that “there is an absence of evidence to support the nonmoving party's case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In considering a motion for summary judgment, the court will not “weigh the
evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). Instead, the court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986). Summary judgment is
appropriate when the nonmoving party has the burden of proof on an essential
element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp., 477 U.S. at 322–23. The
nonmoving party must satisfy this burden of proof by offering more than a mere
“scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.
Conclusory allegations or unsupported speculation, without more, are insufficient to
preclude the granting of summary judgment. See Dash v. Mayweather, 731 F.3d 303,
311 (4th Cir. 2013); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997).
IV.

Discussion
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Defendants Robert Steven Tanner, A.S. Meadows, J.D. Johnson, and RCC
move for summary judgment as to all eight remaining counts.
a. Section 1983 Claims
As a threshold matter, the court must address whether the plaintiff’s
remaining § 1983 claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). The
defendants argue that Heck bars the plaintiff’s § 1983 claims because the plaintiff
entered into a pretrial diversion program for the charges of battery on an officer and
obstructing an officer. I disagree.

Heck confronted the issue of § 1983 claims brought “to recover damages for
allegedly unconstitutional conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid.” Id. at 486.
The Court held that in order to proceed in those types of actions, “a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal court’s issuance of a writ of
habeas corpus.” Id. at 486–87. The Court held:
Thus, when a state prisoner seeks damages in a § 1983 suit,
the district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint
must be dismissed unless the plaintiff can demonstrate
that the conviction or sentence has already been
invalidated. But if the district court determines that the
plaintiff's action, even if successful, will not demonstrate
the invalidity of any outstanding criminal judgment
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against the plaintiff, the action should be allowed to
proceed, in the absence of some other bar to the suit.

Id. at 487 (emphasis in original) (footnotes omitted); see also Wallace v. Kato, 549
U.S. 384, 393 (2007) (noting, in a different context, that the Heck bar is raised only
when there exists a criminal conviction that the § 1983 cause of action would impugn).
Courts disagree as to whether the imposition of a pretrial diversion program
(or an analogous disposition, such as pretrial probation) constitutes a “conviction” for
purposes of the Heck rule. The Sixth, Tenth, and Eleventh Circuits have concluded
that Heck does not bar a subsequent lawsuit after disposition of a criminal case
through a pretrial diversion agreement that ultimately results in the dismissal of
criminal charges. See S.E. v. Grant Cty. Bd. of Educ., 544 F.3d 633, 637–39 (6th Cir.
2008) (Kentucky juvenile pretrial diversion program); Vasquez Arroyo v. Starks, 589
F.3d 1091, 1095 (10th Cir. 2009) (Kansas pretrial diversion program); McClish v.

Nugent, 483 F.3d 1231, 1250–51 (11th Cir. 2007) (Florida pretrial intervention
program); see also Butts v. City of Bowling Green, 374 F. Supp. 2d 532, 537 (W.D. Ky.
2005) (Kentucky pretrial diversion program).
The Second, Third, and Fifth Circuits have reached the opposite conclusion.

See Miles v. City of Hartford, 445 Fed. Appx. 379, 382 (2d Cir. 2011) (Connecticut
accelerated pretrial rehabilitation program); Gilles v. Davis, 427 F.3d 197, 209–11
(3d Cir. 2005) (Pennsylvania “Accelerated Rehabilitative Disposition” program);

DeLeon v. City of Corpus Christi, 488 F.3d 649, 655–56 (5th Cir. 2007) (Texas
deferred adjudication procedure); see also Cabot v. Lewis, 241 F. Supp. 3d 239, 252–
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54 (D. Mass. 2017) (Massachusetts pretrial probation program). This is an issue of
first impression in this Circuit.
I find Heck inapplicable to the facts of this case. Heck is not raised when “there
[is] in existence no criminal conviction that the cause of action would impugn.”

Wallace, 549 U.S. at 393. In this case, a judgment in favor of the plaintiff on his §
1983 claims would not imply the invalidity of his conviction or sentence because the
plaintiff was not convicted of any offense.
Under West Virginia Code § 61-11-22(c), West Virginia’s pretrial diversion
agreement statute, a person who enters into a pretrial diversion agreement with a
prosecutor and “successfully complie[s]” with the agreement’s terms “is not subject to
prosecution for the offense or offenses described in the agreement” unless the
agreement states otherwise. See also Parrish v. Auto Detailing by Me, LLC , No. 5:12cv-03759, 2014 WL 1153735, at *3 n.7 (S.D. W. Va. March 20, 2014) (“[P]retrial
diversion does not involve an adjudication of guilt; charges are dismissed after a
period of time if a defendant successfully completes a period of supervision.”). Thus,
a pretrial diversion agreement under West Virginia law is a means of avoiding a
judgment of criminal guilt—the opposite of a conviction in a criminal action. Here,
the plaintiff’s criminal charges were dismissed after successful completion of the 90day diversion program. An action cannot invalidate a conviction or sentence that does
not exist.

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I cannot find a dismissal of charges even remotely analogous to a conviction.
Courts finding the imposition of pretrial diversion agreements or similar programs to
constitute a conviction have erroneously disregarded Heck’s literal language. See,

e.g., Cabot, 241 F. Supp. 3d at 253 (finding the approach of the Sixth, Tenth, and
Eleventh Circuits “faithful to the literal language” of Heck but inconsistent with its
“purposes”). To dismiss the plaintiff’s § 1983 claims as barred by Heck “because of a
potential conflict that we know now with certainty will never materialize would
stretch Heck beyond the limits of its reasoning.” McClish, 483 F.3d at 1252; cf.

Wallace, 549 U.S. at 393 (concluding that Heck does not bar “an action which would
impugn an anticipated future conviction” and characterizing that theory as a “bizarre
extension of Heck”). Therefore, I conclude that Heck does not apply to bar the
plaintiff’s § 1983 claims in this case.
The plaintiff has three remaining § 1983 claims against Defendants Johnson
and Meadows: Count Fourteen (Excessive Force), Count Sixteen (Procedural Due
Process), and Count Eighteen (Deliberate Indifference). Defendants Johnson and
Meadows have asserted qualified immunity for the § 1983 claims. I will address each
claim in turn.
First, after reviewing the evidence presented on the issues raised by the
parties, I FIND that genuine issues of material fact clearly exist as to the plaintiff’s
excessive force and procedural due process claims. Accordingly, I DENY the
defendants’ Motion as to Counts Fourteen and Sixteen. I now turn to Count Eighteen.
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42 U.S.C. § 1983 subjects to civil liability any person who, acting under color
of state law, deprives an individual of his constitutional or federal rights. In Count
Eighteen, the plaintiff alleges a claim for deliberate indifference to serious medical
needs under the Fourteenth Amendment. The plaintiff’s claim is based on Meadows
and Johnson’s alleged failure to seek medical treatment for the plaintiff. Defendants
Meadows and Johnson argue they are entitled to qualified immunity.
Qualified immunity is “an immunity from suit rather than a mere defense to
liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Thus, “immunity is a
threshold issue which the court addresses before considering any of the defendants'
proffered substantive bases for summary judgment.” Weigle v. Pifer, 139 F. Supp. 3d
760, 768 (S.D. W. Va. 2015) (citing Saucier v. Katz, 533 U.S. 194, 200 (2001)). Under
the doctrine of qualified immunity, “[g]overnmental officials performing discretionary
functions are shielded from liability for money damages so long ‘as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The Fourth Circuit has held that:
When a government official properly asserts qualified
immunity, the threshold question that a court must answer
is whether the facts, when viewed in the light most
favorable to the plaintiff, show that the official's conduct
violated a constitutional right. “If no constitutional right
would have been violated were the allegations established,
there is no necessity for further inquiries concerning
qualified immunity.” However, “if a violation could be made
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out on a favorable view of the parties' submissions, the
next, sequential step is to ask whether the right was clearly
established”—that is, “whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.” The “answer to both Saucier
questions must be in the affirmative in order for a plaintiff
to defeat a . . . motion for summary judgment on qualified
immunity grounds.”

Henry v. Purnell, 501 F.3d 374, 377 (4th Cir. 2007) (citations omitted). Thus, the court
must undertake a two-part inquiry: (1) viewing the facts in the light most favorable
to the plaintiff, the court must determine if there was a constitutional violation; and
(2) if so, whether the right violated was clearly established. Id. at 378. If the answer
to either question is no, then the defendant is entitled to qualified immunity.
“Under the first prong, a court must determine whether the facts as alleged,
taken in the light most favorable to plaintiff, demonstrate the violation of a
constitutional right.” Cline v. Auville, No. 1:09-0301, 2010 WL 1380140, at *3 (S.D.
W. Va. Mar. 30, 2010). To establish a claim of deliberate indifference to serious
medical needs, “the need must be both apparent and serious, and the denial of
attention must be both deliberate and without legitimate penological objective.”

Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999). “Deliberate indifference is a very
high standard—a showing of mere negligence will not meet it.” Id.
At this stage, the court must take the evidence in the light most favorable to
the plaintiff. Even so, the record is devoid of any evidence that Meadows or Johnson
were deliberately indifferent to the plaintiff’s medical needs. In fact, there is no
evidence that Meadows or Johnson even denied the plaintiff medical attention.
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Meadows and Johnson called an ambulance for the plaintiff shortly after the
altercation. Defs.’ Mot. Ex. J [ECF No. 117-10]. The plaintiff was evaluated, at least
for a short period of time, by an emergency medical technician at the Raleigh County
Sheriff’s Department. The plaintiff failed to cooperate with the emergency medical
technicians and refused to speak to emergency personnel. Defs.’ Mot. Ex. K, at 6–7
[ECF No. 117-11]. The plaintiff’s failure to cooperate with emergency personnel
cannot be attributed to the officers. As such, the plaintiff has failed to demonstrate
the violation of a constitutional right, and Meadows and Johnson are entitled to
qualified immunity. The court need not address whether the right was clearly
established. The defendants’ Motion is GRANTED as to Count Eighteen.
b. State Law Claims
The plaintiff has five remaining state law claims. However, in his response to
the defendants’ Motion, the plaintiff stated that he “voluntarily dismisses the
negligence claim brought against RCC” as alleged in Count Two. This appears to be
an attempt to dismiss the claim but does not comport with the requirements of Rule
41(a). Even if the court construes it as a perversely stated request for voluntary
dismissal pursuant to Rule 41(b), the court cannot grant dismissal. “At this stage in
the litigation, an announcement of an intention not to pursue a claim can only be
construed as a concession that there is no factual basis for the claim.” Miller v.

Rubenstein, No. 2:16-cv-05638, 2018 WL 651503, at *5 (S.D. W. Va. Jan. 31, 2018).
The plaintiff provides no argument regarding any disputed facts nor asserts how the
12

facts provided support the assertions set forth in Count Two of the complaint.
Therefore, the defendant's motion is GRANTED as to Count Two.
The court must next address the four state law claims that remain. Count
Three alleges negligence against Meadows and Johnson. Count Four alleges
negligence against Tanner and RCC. Count Seven alleges outrage against Meadows
and Johnson. Count Twelve alleges battery against Meadows and Johnson. While the
defendants’ Memorandum directly addresses Counts Four and Twelve, it does not
specifically mention Counts Three or Seven. With respect to the latter counts, the
defendants only generally aver that Meadows and Johnson are entitled to immunity
to “all state law claims.”
After reviewing the evidence presented on the issues raised by the parties, I
FIND that genuine issues of material fact clearly exist as to Counts Three, Seven,
and Twelve. Thus, I DENY the defendants’ Motion as to Counts Three, Seven, and
Twelve. I now turn to Count Four.
Count Four alleges that Defendant Tanner (the Raleigh County Sheriff) and
RCC were negligent by failing to adequately investigate officers prior to hiring, failing
to provide appropriate training, oversight, and supervision, and failing to maintain
and enforce policies and procedures. I will address each argument in turn.
Under West Virginia law, courts consider the following in a claim for negligent
hiring:
When an employee was hired, did the employer conduct a
reasonable investigation into the employee’s background
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vis a vis the job for which the employee was hired and the
possible risk of harm or injury to co-workers or third
parties that could result from the conduct of an unfit
employee? Should the employer have reasonably foreseen
the risk caused by hiring an unfit person?

McCormick v. W.Va. Dep’t of Pub. Safety, 503 S.E.2d 502, 506 (W.Va. 1998) (quoting
State ex rel. West Virginia State Police v. Taylor, 499 S.E.2d 283, 289 n.7 (W.Va.
1997)). The court must also consider “the nature of the employee’s job assignment,
duties, and responsibilities.” McCormick, 503 S.E.2d at 507. The duty with respect to
hiring and retention increases “as risks to third persons associated with a particular
job increase.” Id. An employer’s duty is heightened when the prospective employee is
a police officer, as police officers are “permitted to carry guns, use necessary force to
effect arrest, and to enter civilian residences in certain circumstances.” Woods v.

Town of Danville, 712 F. Supp. 2d 502, 514 (S.D. W. Va. 2010).
Nonetheless, even in viewing the alleged facts in the light most favorable to
the plaintiff, there is no evidence of negligent hiring. The plaintiff has failed to
produce any evidence demonstrating that defendants Tanner or RCC failed to
investigate Meadows or Johnson prior to hiring them. Moreover, the plaintiff admits
that the officers even underwent psychological examinations as part of the
application process. In addition, the plaintiff has not pointed to any evidence showing
that there were risks in hiring either Meadows or Johnson, such as a poor prior
employment history. Thus, the plaintiff’s negligent hiring claim fails.

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In addition, the plaintiff alleges that defendants Tanner and RCC were
negligent in supervising or training Meadows and Johnson. This assertion also lacks
merit.
To state a claim for negligent supervision, a plaintiff must show that “[a
municipal defendant] failed to properly supervise [an employee officer] and, as a
result, [the employee officer] proximately caused injury to the [plaintiff].” Woods, 712
F. Supp. 2d at 515 (citing Taylor v. Cabell Huntington Hosp., Inc., 538 S.E.2d 719,
725 (2000)). Negligent supervision claims are treated like other claims in negligence.

See Taylor, 712 F. Supp. 2d at 725. The court must take the evidence in the light most
favorable to the plaintiff.
Here, it is clear that both Meadows and Johnson received extensive training
and supervision. Both officers received training at the West Virginia State Police
Academy, where they were instructed on, among other things, the use of force,
arresting persons, and providing necessary medical care. Both officers also received
field training with the Raleigh County Sheriff’s Department. Further, Meadows and
Johnson had both responded to numerous domestic violence calls in the past, and
there is no evidence that either officer had any issue in responding to prior calls.
Negligence must not be inferred based on the existence of injury alone. See Walton v.

Given, 215 S.E.2d 647, 651 (W.Va. 1975).
In support of his negligent supervision claim against Tanner and RCC, the
plaintiff contends that Meadows and Johnson could not answer basic questions about
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the department’s policies and procedures. The plaintiff has failed to show, however,
that his injury occurred as a result of the officers’ alleged lack of knowledge of an
unspecified policy, particularly in light of the extensive training both officers have
received regarding the use of force, arresting persons, and providing medical care.
The plaintiff argues further that the defendants violated a department policy
requiring officers to report each use of force and to review each use of force. This
argument likewise fails. The plaintiff has not produced any evidence—and cannot
produce any evidence—that his injuries occurred as a result of the lack of a report or
review, considering that the alleged failure to report or review the incident occurred

after the altercation. Lastly, the plaintiff asserts Tanner and RCC were negligent
because Johnson instructed Meadows to use a taser in violation of written policy. But
the plaintiff has provided no evidence that a lack of supervision or training led to the
alleged policy violation. Consequently, the plaintiff’s claim for negligent supervision
or training must fail. The defendants’ Motion is GRANTED as to Count Four.
V.

Conclusion
The defendants’ Renewed Motion for Summary Judgment [ECF No. 117] is

GRANTED in part and DENIED in part. The defendants’ Motion is GRANTED as to
Counts Two (Negligence), Four (Negligence), and Eighteen (Deliberate Indifference).
The defendants’ Motion is DENIED as to Counts Three (Negligence), Seven
(Outrage), Twelve (Battery), Fourteen (Excessive Force), and Sixteen (Procedural
Due Process).
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The court DIRECTS the Clerk to send a copy of this Memorandum Opinion
and Order to counsel of record and any unrepresented party.
ENTER:

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September 26, 2018