Another Assisting Police Lawsuit in the News

A federal court in California has dismissed several counts in a lawsuit filed against the City of Richmond and American Medical Response West over the death of a man, but will otherwise allow the case to continue. The suit was brought by the family of Ivan Gutzalenko, who died on March 10, 2021.

Gutzalenko was suffering from a medical and/or mental health crisis at the time that triggered the response of police and AMR. During the course of treatment, AMR paramedic Damon Richardson injected him with Versed. Within 90 seconds Gutzalenko stopped breathing.

The facts as explained in the court’s ruling:

  • On March 10, 2021, a Richmond police officer responded to a call for service about a man causing a disturbance in a furniture store on San Pablo Avenue in Richmond, California.
  • When the police officer arrived at the scene, he saw a man matching the call description and approached him on foot. The man was Mr. Gutzalenko, the decedent.
  • The decedent was “in need of medical aid and was possibly intoxicated and/or experiencing a medical or mental health crisis.”
  • The decedent had a dark purple mark on his forehead, was bleeding profusely from one of his hands, and had difficulty focusing on and communicating with the police officer.
  • The Defendants, AMR West and the paramedic Mr. Richardson, arrived in an ambulance and attempted to bandage the decedent’s hands.
  • Plaintiffs allege that the decedent became agitated and attempted to keep his hands away. Police officers then handcuffed the decedent after a “struggle” for “2 to 3 minutes.”
  • While the decedent was handcuffed on the ground, Defendant Mr. Richardson injected the decedent with Versed, a chemical restraint.
  • Plaintiffs claim Mr. Richardson did not “aspirate” the syringe when he administered the Versed to ensure it was not in the vein.
  • Plaintiffs allege that the decedent stopped breathing within 90 seconds of the Versed administration and that he was pronounced dead after he was taken to Summit Hospital in Oakland.
  • An autopsy determined the cause of death was prone restraint asphyxia and cardiac arrest while under the influence of methamphetamine.

The suit made a variety of claims, including violations of 42 U.S.C. § 1983 for violation of Gutzalenko’s First, Fourth and Fourteenth Amendment rights (unreasonable searches and seizures, excessive and unreasonable force in the course of a seizure, and interference with familial relationships); state law claims for violation of the Bane Act, negligence, assault,  battery, and false arrest/imprisonment.

AMR and Richardson sought to have the case dismissed in part because neither is a public sector entity (also referred to as a state actor) because they are in the private sector. Lawsuits under § 1983 and the Bane Act (California’s equivalent to § 1983) requires state action that violates a person’s Constitutional rights. Quoting from the ruling by US District Court Judge Edward M. Chen:

  • [T]he issue of state action in situations involving action taken by a medical worker such as a paramedic turns on whether the paramedic acted in a law enforcement capacity when restraining a person or instead acted to provide medical assistance to the detainee.
  • Plaintiffs contend that Mr. Richardson acted “in a law enforcement manner” by administering Versed, and “was acting within the course and scope of that employment to assist the City of Richmond police officers in detaining and arresting Ivan Gutzalenko.”
  • The fact that the decedent was not resisting or thrashing at the time Mr. Richardson injected the decedent with Versed, begs the question what medical purpose was being fulfilled by the injection.
  • Might a law enforcement function (instead of medical care) be implied?
  • On the other hand, the fact that the decedent was already in police custody and control when Mr. Richardson injected Versed could suggest that Mr. Richardson did not act to assist law enforcement in the arrest.
  • At the motion to dismiss stage, all facts alleged in the complaint are taken as true and all reasonable inferences therefrom must be drawn in the plaintiff’s favor.
  • Although the allegation of the complaint about the purpose of the injection are somewhat conclusory, the facts, viewed in the plaintiff’s favor are sufficient to state a claim of state action.
  • This is, of course, without prejudice to revisiting the question of state action based on discovered facts in future proceedings and motions.
  • The Court denies the motion to dismiss the Section 1983 claims on state action grounds.
  • The Bane Act provides an individual a cause of action for damages, injunctive and other equitable relief against a person who “whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment” by another of rights under the constitution or laws of the United States or of California.
  • A Fourth Amendment claim of excessive force is analyzed under the framework set forth by the Supreme Court.
  • That analysis requires balancing the “nature and quality of the intrusion” on a person’s liberty with the “countervailing governmental interests at stake” to determine whether the use of force was objectively reasonable under the circumstances.
  • Here, Plaintiffs has adequately alleged that Defendants have interfered with the Decedent’s constitutional rights.
  • Mr. Richardson’s failure to aspirate the syringe, therefore improperly injecting Versed into the decedent’s vein instead of his muscle which allegedly resulted in or contributed to his death, could constitute excessive force and pose a substantial risk of death or serious injury in violation of the Fourth Amendment.
  • However, Plaintiffs failed to adequately allege that Defendants intentionally interfered with the decedent’s constitutional rights.
  •  Plaintiffs do not allege that Mr. Richardson intentionally failed to aspirate the syringe, to the contrary, they allege that “due to a failure to be properly trained, [Mr. Richardson] unintentionally administered a high dose of Versed directly into [the decedent’s] vein, instead of into [the decedent’s] muscle, as he should have done.”
  • Plaintiffs also do not allege that Defendants intentionally interfered with their right to familial associations.
  • Therefore, the Court dismisses the Bane Act claims against Defendants.

Here is the decision, which goes on to address several additional state law claims, including California’s shortened statute of limitations for medical negligence.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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