Tomashek v. Raleigh County Emergency Operating Center et al
Filing
43
MEMORANDUM OPINION ORDER granting the 12 MOTION by Raleigh County Emergency Operating Center, John Zilinski, and Jane Doe Dispatcher to Dismiss; Count One is dismissed with prejudice; Count Two is dismissed with prejudice as to Raleigh County Emergency Operating Center and John Zilinski. Signed by Judge Joseph R. Goodwin on 11/14/2017. (cc: counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
PHILIP J. TOMASHEK, II
v.
CIVIL ACTION NO. 2:17-cv-01904
RALEIGH COUNTY EMERGENCY
OPERATING CENTER, et al.,
MEMORANDUM OPINION ORDER
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
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.
Defendant John Zilinski was at all relevant times the director of RCEOC and the supervisor of
dispatcher Jane Doe. Id.
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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.
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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 RCEOC3 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-
The defendants request dismissal pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil
Procedure. Defs.’ Mot. 2. The defendants, however, cite federal case law in their “Standard of Review
Section” and in support of their motion. The proper standard is Federal Rules of Civil Procedure Rule
12(b)(6), which is what the court will analyze the defendants’ motion under.
2
Count Two alleges the same for defendant County Commission of Raleigh County, West Virginia.
That defendant, however, is not a party to this motion.
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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
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RCEOC. Thus, they are all entitled to immunity under W. Va. Code § 24-6-8 unless
their conduct was “willful or wanton.”
The plaintiff is suing these defendants for negligence. Id. at 8–11. The plaintiff
alleges that defendant Jane Doe breached her duty of care by “negligently failing to
dispatch the appropriate emergency service provider.” Id. at 9. The plaintiff alleges
that defendants Zilinski and RCEOC were negligent by:
failing to adequately investigate persons prior to hiring,
failing to provide appropriate training and enforce
compliance therewith, failing to provide sufficient
oversight and supervision, and failing to develop, maintain
and enforce policies and procedures sufficient to safeguard
the [p]laintiff and the public from injury due to the
negligence of RCEOC employees and comply with the
requirements of the federal and state constitutions, West
Virginia Code § 24-6-1, et seq. and all administrative rules
and regulations adopted to effectuate said statutes.
Id. at 10. The plaintiff goes on to state that he is entitled to punitive damages for
these negligence claims, because the “acts and conduct of [these defendants were]
willful, wrongful, deliberate, [and] malicious.” Id. at 9, 11.
While the rules for pleading are liberal, plaintiffs must state sufficient facts to
support a claim “that are beyond mere labels and conclusions.” Twombly, 550 U.S. at
555. “Simply identifying conduct as willful, wanton, intentional, or reckless, with
little factual enhancement or support is insufficient.” Earle v. Huntington, No. 3:1429536, 2015 WL 5611650, at *5 (S.D. W. Va. Sept. 23, 2015) (quotation marks
omitted). Here, the plaintiff has not plead any facts that allow the court to draw the
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reasonable inference that these defendants were “willful, wrongful, deliberate, [and]
malicious.” Instead, he has only offered mere labels and conclusions.
Thus, the court FINDS that these defendants are entitled to immunity
pursuant to W. Va. Code § 24-6-8. Therefore, dismissal is proper as to Raleigh County
Emergency Operating Center, John Zilinski, and Jane Doe Dispatcher4 for Counts
One and Two.
V.
Conclusion
For the reasons stated herein, Defendants Raleigh County Emergency
Operating Center, John Zilinski, and Jane Doe Dispatcher’s Motion Dismiss is
GRANTED. Counts One is dismissed with prejudice. Count Two is dismissed with
prejudice as to Raleigh County Emergency Operating Center and John Zilinski
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
Defendants Jane Doe and Zilinski are also entitled to immunity under W. Va. Code § 29-12A-5(b).
W. Va. Code § 29-12A-5(b) provides “An employee of a political subdivision is immune from liability
unless one of the following applies; (1) His or her acts or omissions were manifestly outside the scope
of employment or official responsibilities; (2) His or her acts or omissions were with malicious purpose,
in bad faith, or in a wanton or reckless manner; or (3) Liability is expressly imposed upon the employee
by a provision of this code.” RCEOC, which provides emergency telephone services to Raleigh County,
West Virginia, is a political subdivision. Defendants Jane Doe and Zilinski are both employed by
RCEOC, therefore they are each entitled to immunity unless one of the three exceptions applies. The
plaintiff concedes that these defendants were “at all times relevant hereto acting within the scope of
[their] employment.” Am. Compl. 2. Thus, the first exception for acts “manifestly outside the scope of
employment” does not apply. W. Va. Code § 29-12A-5(b)(1). The plaintiff has not provided any provision
of the code that expressly imposes liability upon defendant Jane Doe. Additionally, the plaintiff did
not plead any facts which lead to a reasonable inference of malicious or wanton behavior by Jane Doe
or Zilinski. Thus, none of the exceptions apply, and defendants Jane Doe and Zilinski are entitled to
immunity for Counts One and Two pursuant to W. Va. Code § 29-12A-5(b).
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ENTER:
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November 14, 2017
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