Wrongful Death Claims Against Colorado Springs Medic Dismissed

The US District Court for the District of Colorado has dismissed the claims against a Colorado Springs Fire Department paramedic who was accused of wrongful death and violating the civil rights of a man who died after being restrained. Kevin Dizmang died on November 15, 2022 after a failed mental health intervention by the Colorado Springs Police Department Crisis Response Unit.

Dizmang’s estate sued the city, a police officer and Paramedic Nick Fisher, both of whom were serving as part of the city’s crisis response unit. Dizmang suffered from schizophrenia and PTSD. His ex-wife called 911 reporting she believed he was suicidal and walking in traffic. A more detailed explanation of the allegations including a copy of the complaint can be found in earlier coverage.

In dismissing the claims, the court ruled as follows:

• Defendant Fischer argues that he is entitled to qualified immunity as to the § 1983 claims and to sovereign immunity as to the wrongful death and medical malpractice claims.
• He also argues that the ELEIA [Colorado’s Enhance Law Enforcement Integrity Act], claims do not apply to him, because he is a paramedic and not a police officer.
• The Court will address each argument as applicable.
• Excessive Force Claims
• Plaintiff brings excessive force claims pursuant to: (1) the Fourth Amendment via § 1983; (2) Colorado Constitution Article II Section 7; and (3) C.R.S. § 18-8-802 and C.R.S. § 13-21-131.
• Plaintiff must adequately allege that (1) Defendant Fischer violated Mr. Dizmang’s constitutional rights, and (2) those rights were clearly established at the time of the alleged conduct.
• When a plaintiff fails to satisfy either prong, the Court must grant qualified immunity.
• Defendant Fischer argues that there is no constitutional violation because a paramedic cannot effect a Fourth Amendment seizure during a welfare check.
• To state a Fourth Amendment excessive force claim, plaintiffs must “show both that a seizure occurred and that the seizure was unreasonable.”
• Defendant Fischer argues that he was acting in his capacity as a medical provider, not a law enforcement role, and so he could not effect a seizure.
• Plaintiff has cited no case in the Tenth Circuit or U.S. Supreme Court discussing whether, or in what circumstances, a paramedic can effectuate a Fourth Amendment seizure.
• However, other circuits have reasoned that the outcome depends on “the specific purpose and the particular nature of the conduct alleged in the complaint.”
• In Peete, the Sixth Circuit held that paramedics who were attempting to provide medical attention did not unreasonably seize the plaintiff for the purpose of interfering with his liberty. The paramedics “were not acting to enforce the law, deter or incarcerate,” but rather were trying to help the plaintiff, and thus there was no seizure under the Fourth Amendment.
• The Sixth Circuit later explained that whether the Fourth Amendment applies depends on “whether the [officials] acted in a law-enforcement capacity or in an emergency-medical-response capacity.”
• Other courts have similarly differentiated between officials providing medical care and officials acting in a law enforcement capacity.
• Here, based on the allegations in the complaint, it appears that Defendant Fischer was not attempting to arrest Mr. Dizmang or otherwise enforce the law; he was trying to subdue him so that he could be properly treated.
• Plaintiffs disagree, arguing that there are sufficient facts to demonstrate that Defendant Fischer “assumed a law enforcement role” when he tackled Mr. Dizmang, relying on the fact that Defendant Reed [a police officer] was attempting to handcuff Mr. Dizmang.
• But this is insufficient.
• It is clear that Mr. Dizmang needed treatment and that Defendant Fischer was attempting to fulfill his role as a treatment provider.
• Plaintiff argues that Defendant Fischer “was under the direction of Defendant Reed.”
• However, regardless of whether the allegations indicate that Defendant Fischer was acting to provide medical care or was acting in a law enforcement capacity, Plaintiff does not cite to any case that suggests that a paramedic can operate in the capacity of a law enforcement officer and effect a seizure.
• Even if a paramedic’s attempt to provide treatment amounts to a violation of a constitutional right to be free from an unlawful seizure, the right was not clearly established.
• The Tenth Circuit has not opined on whether or in what circumstances a paramedic can effectuate a Fourth Amendment seizure.
• Plaintiff cites no authority holding that a medical professional’s restraint of a person in an emergency medical situation constitutes a Fourth Amendment seizure, or any authority holding that similar conduct was a seizure in analogous circumstances.
• Therefore, regardless of whether Plaintiff adequately pleaded that Defendant Fischer effected a Fourth Amendment seizure, the law was not clearly established that he could do so.
• Plaintiff has failed to satisfy the second prong of the qualified immunity analysis, so Defendant Fischer is entitled to qualified immunity as to the Fourth Amendment claim.
• Fourteenth Amendment Deliberate Indifference Claim
• Plaintiff brings a Fourteenth Amendment claim against Defendant Fischer for deliberate indifference to Mr. Dizmang’s medical needs.
• However, Plaintiff did not respond to any of Defendant Fischer’s arguments or otherwise brief this claim in the response.
• Thus, the Court considers this claim forfeited.
• Professional and Medical Negligence Claims
• Plaintiff also brings state law negligence claims against Defendant Fischer. The Court declines to exercise supplemental jurisdiction over these claims.
• Wrongful Death C.R.S. § 13-21-201
• Plaintiff also brings a wrongful death claim pursuant to C.R.S. § 13-21-201. However, there is no predicate tort on which the wrongful death claim can be premised.
• C.R.S. § 13-21-201 does not create a new tort; rather, it allows plaintiffs to bring claims on behalf of a decedent.
• Because the Court dismissed claims two and four, to the extent that this claim is based on an underlying federal claim, the Court dismisses the claim. The Court declines to exercise supplemental jurisdiction as to the state law claims.
• Thus, the Court grants Defendant Fischer’s motion to dismiss and declines to exercise supplemental jurisdiction over state law claims brought here.

Here is a copy of the decision.