Tomashek v. Raleigh Cnty. Emergency Operating Ctr.

Decision Date26 September 2018
Docket NumberCIVIL ACTION NO. 2:17-cv-01904
Citation344 F.Supp.3d 869
CourtU.S. District Court — Southern District of West Virginia
Parties Philip J. TOMASHEK, II, Plaintiff, v. RALEIGH COUNTY EMERGENCY OPERATING CENTER, et al., Defendants.

Kimberly K. Parmer, Marvin W. Masters, The Masters Law Firm, Charleston, WV, for Plaintiff.

Chip E. Williams, Kevin J. Robinson, Pullin Fowler Flanagan Brown & Poe, Beckley, WV, J. Victor Flanagan, Pullin Fowler Flanagan Brown & Poe, David J. Mincer, Harrison M. Cyrus, Bailey & Wyant, Charleston, WV, for Defendants.



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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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 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").

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 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2548. 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, 106 S.Ct. 2505. 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

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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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, 114 S.Ct. 2364. 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, 114 S.Ct. 2364. 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 against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Id. at 487, 114 S.Ct. 2364 (emphasis in original) (...

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