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Sanders v. Boutwell

United States District Court, M.D. Alabama

November 25, 2019

VICKY SANDERS, as Guardian of Brian Lomanack, an Incapacitated Person, Plaintiff,
GREGORY BOUTWELL, et al., Defendants.



         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.


         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).


         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.


         As stated, the plaintiff, as Lomanack's guardian, claims that the defendants violated Lomanack's Fourteenth Amendment right to substantive ...

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