Magistrate Recommends Colorado Fire Department be Dismissed from Ketamine Suit

A US magistrate judge has recommended that a lawsuit against the West Metro Fire District and several firefighters be dismissed. The lawsuit brought by Jeremiah Axtell claimed that firefighters and police officers violated his rights by restraining him, and later injecting him with ketamine.

The suit named the Lakewood Police Department, West Metro Fire, and numerous individual officers and firefighters, contending they violated Axtell’s First, Fourth, and Fourteenth Amendment rights, along with committing unlawful arrest, false imprisonment, medical malpractice, assault, battery, conspiracy, and defamation. More on the original filing.

US Magistrate Judge Michael E. Hegarty handed down a lengthy decision that recommends West Metro fire and the individual fire service defendants be dismissed from the action. As explained by Magistrate Hegarty:

  • Here, the claims of excessive force against the West Metro Defendants concern the following factual allegations.
  • Roughly twenty-five minutes after Agent Palomo seized Plaintiff, Paramedic Onstott arrived and spent sixty seconds speaking with Plaintiff.
  • In this brief conversation, “it was [Plaintiff] who guided the conversation asking [Paramedic] Onstott’s name and telling him to introduce himself and to ‘talk to me like a real dude.'”
  • Paramedic Onstott later wrote in his report that Plaintiff “would have random spurts of uncontrollable laughter [and] . . . [w]ould star screaming random things and would ask questions that didn’t make sense. [Plaintiff] was verbally and physically aggressive and showed no signs of cooperative [sic] with Fire or PD.”
  • Additionally, Paramedic Onstott’s report stated: “After trying to calm patient multiple times, and pt being hypertensive, hot to touch, and delirious, it was determined pt was in excited delirium . . .”.
  • Plaintiff contends that Paramedic Onstott did not follow proper protocols for how to determine “excited delirium,” such as taking his temperature.
  • Based on this “excited delirium” determination, Paramedic Onstott injected Plaintiff with ketamine
  • Plaintiff has brought his excessive force claim against all West Metro Defendants.
  • Yet, as is evident from the above recitation of factual allegations in the [complaint], Chief Lombardi and EMT Herrera did not administer Plaintiff with the ketamine.
  • Plaintiff seeks to hold Chief Lombardi liable because he “endorsed this behavior in paramedics who were administering ketamine.”
  • Plaintiff does not explain in his response how EMT Herrera would be liable. The lack of any plausible allegations as to how either Chief Lombardi or EMT Herrera personally participated in the alleged use of excessive force necessitates that the claims against them be dismissed.
  • Regarding Paramedic Onstott, Plaintiff seeks to hold him liable under the notion that he acted as a law enforcement official “because the administration of ketamine was done for the purpose of assisting law enforcement officers rather than treating a medical need.”
  • Plaintiff has not cited a single case in which a paramedic was held liable for excessive force when that paramedic exercised medical judgment and administered ketamine to address excited delirium pursuant to a state waiver.
  • Paramedic Onstott’s report included description that Plaintiff continued to be aggressive and combative “despite being in handcuffs.”
  • Paramedic Onstott recorded that Plaintiff was “being hypertensive, hot to touch, and delirious,” prior to the administration of ketamine.
  • Although Plaintiff alleges a conspiracy in which Agent Palomo unduly influenced Paramedic Onstott to administer the ketamine, Plaintiff’s own allegations show that Paramedic Onstott exercised some modicum of medical judgment in administering the ketamine after Plaintiff had been restrained.
  • The Court further notes that contrary to Plaintiff’s assertion that there is clearly established law for Paramedic Onstott’s alleged constitutional violation, case law “reflects the sound conclusion of the Supreme Court and the Tenth Circuit that medical professionals, rather than law enforcement personnel, are the individuals most qualified to balance” the decision of whether to sedate.
  • Additionally, there is no consensus of circuit court decisions that would put Paramedic Onstott on notice of his alleged excessive force.
  • For these reasons, there is no clearly established law, and Paramedic Onstott is entitled to qualified immunity.
  • Plaintiff asserts two Fourteenth Amendment claims against the West Metro Defendants: forcible administration of ketamine (Third Claim for Relief) and failure to ensure basic safety and provide adequate medical care and treatment (Fourth Claim for Relief).
  • Because both claims arise under the substantive due process clause, Plaintiff must establish deliberate indifference to plausibly state his claims.
  • Plaintiff needs to satisfy both the objective and subjective components of the deliberate indifference test.
  • A plaintiff must demonstrate more than mere negligence such that the subjective component may not be met even when the “medical judgment may not have been objectively unreasonable.”
  • Paramedic Onstott viewed Plaintiff as combative and in excited delirium with a “high concern for [Plaintiff] becoming extremely violent.”
  • Plaintiff’s non-conclusory allegations may establish that Paramedic Onstott acted negligently, but they do not plausibly allege that he knew Plaintiff faced a substantial risk of harm and disregarded that risk.
  • Because Plaintiff has not alleged that Chief Lombardi was on the scene or EMT Herrerra administered the ketamine, Plaintiff also has failed to plausibly allege the claims against them.

Magistrate Hegarty rendered similar rulings on behalf of the other defendants as well. Here is a copy of the ruling:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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