United States District Court, M.D. Alabama
VICKY SANDERS, as Guardian of Brian Lomanack, an Incapacitated Person, Plaintiff,
v.
GREGORY BOUTWELL, et al., Defendants.
OPINION
MYRON
H. THOMPSON UNITED STATES DISTRICT JUDGE
Plaintiff
Vicky Sanders brings this lawsuit as the guardian of Brian
Lomanack, who is incapacitated. The plaintiff guardian
alleges that the defendants needlessly delayed the provision
of medical care to Lomanack after he was severely injured in
an accident. The defendants are Ozark Fire Chief Gregory
Boutwell and his employer the City of Ozark, Alabama, and 911
call operator Jessica Cauthen and her employer the Ozark-Dale
County E-911 Board. The plaintiff guardian asserts against
the defendants a federal substantive-due-process claim under
42 U.S.C. § 1983 and state claims of negligence and
wantonness. This court's jurisdiction is proper under 28
U.S.C. § 1331 (federal question) and 28 U.S.C. §
1367 (supplemental).
Now
before the court is the recommendation of the magistrate
judge that the defendants' motions to dismiss be granted
except as the federal and state claims against Fire Chief
Boutwell and the federal claim against the City of Ozark.
After and independent and de novo review of the record and
for the reasons to be explained below, the court will accept
the magistrate judge's recommendation only in part, and
will dismiss all claims except the state claims against
Boutwell.
I.
LEGAL STANDARD
A
motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the sufficiency of the
complaint against the legal standard articulated by Rule 8 of
the Federal Rules of Civil Procedure. Rule 8 provides that
the complaint must include “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). When evaluating a motion
to dismiss pursuant to Rule 12(b)(6), the court must take the
facts alleged in the complaint as true and construe them in
the light most favorable to the plaintiff. See Resnick v.
AvMed, Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012).
To
survive a Rule 12(b)(6) motion, the complaint “must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Additionally, notwithstanding the alleged facts, Rule
12(b)(6) “[d]ismissal is ... permitted ‘when on
the basis of a dispositive issue of law, no construction of
the factual allegations will support the cause of
action.'” Glover v. Liggett Grp., Inc.,
459 F.3d 1304, 1308 (11th Cir. 2006) (quoting Marshall
Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d
1171, 1174 (11th Cir. 1993)); see also Neitzke v.
Williams, 490 U.S. 319, 326-27 (1989) (explaining that
Rule 12(b)(6) allows a court “to dismiss a claim on the
basis of a dispositive issue of law”).
Finally,
the court need not accept as true “conclusory
allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts.” Oxford Asset
Mgmt., Ltd. v. Jaharis, 297 F.3d. 1182, 1188 (11th Cir.
2002). Conclusory allegations are those that express “a
factual inference without stating the underlying facts on
which the inference is based.” Conclusory,
Black's Law Dictionary (11th ed. 2019).
I.
FACTUAL ALLEGATIONS
The
facts, taken in the light most favorable to the plaintiff
guardian for Lomanack and with all reasonable inferences
drawn in plaintiff's favor, are as follows.
Lomanack
was involved in an all-terrain vehicle accident in Dale
County, Alabama, within the jurisdiction of the Echo
Volunteer Fire & Rescue. The accident left Lomanack
unconscious, bleeding from his ears, and with a “large
bulge and/or deformity in his skull and neck area.” Am.
Compl. (doc. no. 64) at 5. Someone at the scene of the
accident dialed 911 and reported the accident to defendant
Cauthen, a dispatcher with the defendant Ozark-Dale County
E-911 Board.
The
E-911 Board, which receives emergency calls and dispatches
emergency services like the Echo Volunteer unit, works with
both that unit and the Ozark Fire Department to respond to
emergencies in the area. The board's communication system
includes individual channels for different emergency services
as well as a channel to which all emergency personnel have
access.
After
receiving the emergency call, Cauthen dispatched the Echo
Volunteer unit, and a member of the unit arrived at the scene
of the accident. That person reported to Cauthen (via the
unit's private channel) that Lomanack was
“critical” and “barely breathing, ”
id. at 6, and Cauthen repeated that information on
the general channel that all agencies could hear. Based on
this report, the Echo Volunteer chief--who was not yet at the
scene--directed Cauthen to dispatch a medical helicopter to
transport Lomanack, and Cauthen proceeded to dispatch the
helicopter.
Enter
defendant Boutwell who, according to the allegations in this
case, was under the influence of alcohol or other
intoxicating substances or medicine. As Ozark Fire Chief, he
heard Cauthen's helicopter request over the E-911 general
channel. Though he was not (and never arrived) at the scene
of the accident--an accident that was outside of Ozark's
jurisdiction--Boutwell ordered Cauthen (via the Ozark Fire
Department channel) to cancel the helicopter and place
everyone on “standby” until he could arrive at
the scene. Id. at 8. Boutwell asked for reports from
any unit that arrived at the scene, but Cauthen did not
initially share the Echo Volunteer first responder's
report that Lomanack was “critical” and
“barely breathing.” Id. at 9. Instead,
Cauthen reached out to a deputy sheriff she believed was on
his way to the scene. She eventually repeated to Boutwell
that Lomanack was critical and described his injuries, but
Boutwell continued to instruct Cauthen to delay dispatching
the helicopter until he arrived at the scene.
At this
time, the Echo Volunteer unit was unaware that the helicopter
dispatch was canceled, and its members waited in vain for the
helicopter to arrive. After several requests from the Echo
Volunteer unit about the status of the helicopter, Cauthen
eventually informed the unit that she had canceled the
helicopter at Boutwell's request. After the unit again
described Lomanack's condition, Cauthen called
Boutwell's cellphone and had an “off-the-record
phone conversation, ” id. at 10, after which
Boutwell directed Cauthen, via the Ozark Fire Department
radio channel, to dispatch the helicopter.
By the
time the helicopter was finally on its way to the scene of
the accident, an ambulance had arrived, and the first
responders decided it was in Lomanack's best interest to
travel via ambulance instead of continuing to wait for the
helicopter. As a result of the delay caused by the initial
cancelation of the medical helicopter, Lomanack sustained
“substantial [and] permanent cognitive, physical, and
economic injuries.” Id. at 11.
III.
FEDERAL CLAIM
As
stated, the plaintiff, as Lomanack's guardian, claims
that the defendants violated Lomanack's Fourteenth
Amendment right to substantive ...