Axtell v. City of Lakewood

Decision Date26 January 2022
Docket NumberCivil Action 21-cv-00291-RM-MEH
PartiesJEREMIAH AXTELL, Plaintiff, v. CITY OF LAKEWOOD, et al., Defendants.
CourtU.S. District Court — District of Colorado


Michael E. Hegarty, United States Magistrate Judge.

In his Second Amended Complaint (“SAC”), Plaintiff Jeremiah Axtell (Plaintiff) brings numerous federal and state law claims against a total of thirteen defendants. ECF 134. This case revolves around Plaintiff's encounter with police and paramedics in which he alleges he was unlawfully arrested and injected with ketamine. There are currently four pending motions to dismiss: (1) ECF 145 filed by Defendant Gretchen Schad; (2) ECF 148 filed by Defendants EMT John Herrera, Chief Don Lombardi, Paramedic Austyn Onstott, and West Metro Fire Protection District[1] (collectively, “West Metro Defendants); (3) ECF 149 filed by Defendants City of Lakewood, Sergeant Creighton Bates, Agent Michele Deleon Chief Daniel McCasky, Agent F. Saul Palomo, and Detective Daniel Simpson (collectively, Lakewood Defendants); and (4) ECF 155 filed by Defendants Dr David Richter and Dr. Peter Vellman (together, “Doctor Defendants). The motions are fully briefed and have been referred to this Court for a recommendation. ECF 150; ECF 152; ECF 154; ECF 156. For the reasons described herein, the Court respectfully recommends granting the motions.

I. Factual Background

The following are the materially relevant factual allegations made by Plaintiff in the SAC, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Plaintiff met Anita Springsteen in March 2019 and began a long-term relationship with her. ECF 134 at 6, ¶ 12. During the summer of 2019, he helped Ms. Springsteen with her (ultimately successful) campaign for Lakewood City Council. Id. ¶ 13. A memory care business moved into Ms. Springsteen's residential neighborhood in 2013 and began running a group home. Id. at 7, ¶ 17. Plaintiff contends that the memory care center had many problems, and neighbors worried that employees were guilty of elder abuse. Id. ¶¶ 17-18. Employees were “especially rude to Ms. Springsteen because she had reported them . . . for their sanitation, health and elder abuse violations.” Id. at 7-8, ¶ 19. Plaintiff asserts that “employees at the group home saw Ms. Springsteen's ascension to City Council as a threat to concealing their wrongdoing and a call for accountability.” Id. at 8, ¶ 20.

On June 28, 2020, Plaintiff overheard employees calling Ms. Springsteen “a variety of ugly profanities when she asked them to dispose of an adult diaper with feces spilling out from their facility that had sat in the roadway in front of her driveway for over a week.” Id. ¶ 21. Plaintiff intervened and asked the employees to pick up the diaper. Id. ¶ 22. In response, the employees “laughed and scoffed at him and egged him on as he walked away up the street.” Id. Plaintiff returned to his house, but the employees called the police. Id. ¶ 24. Specifically, Stephanie Salinas called 911 at approximately 10:45 a.m. to report that Plaintiff was “charging” the group home. Id. at 9, ¶ 25. When the 911 operator asked Ms. Salinas if Plaintiff had any weapons, she stated, He says he has knives in his pockets or something like that.” Id. Plaintiff refers to Ms. Salinas's comments as lies. Id.

Lakewood Police responded to the call and arrived at the group home. Id. ¶ 26. Plaintiff walked over to the police “to talk about the problem with the neighbors.” Id. Defendant Agent F. Saul Palomo (“Agent Palomo”) arrived at the scene first. Id. ¶ 27. Agent Palomo's “report states that he sat down the block and observed [Plaintiff] to see if he had weapons.” Id. Observing only a phone in Plaintiff's hand, Agent Palomo then approached Plaintiff. Id. ¶¶ 27-28. Agent Palomo claims that Plaintiff “saw him and walked back onto the street.” Id. ¶ 28. Plaintiff responds that he wanted to talk to Agent Palomo but that he “was immediately aggressive.” Id.

From this point, as stated in the SAC, police reports and Plaintiff's account of events begin to diverge. Id. at 10, ¶ 29. Plaintiff claims he “immediately removed his jacket and pulled his shirt up to show that he had no weapons, ” but Agent Palomo wrote in his report that Plaintiff reached into his pockets. Id. ¶ 30. Agent Palomo then searched Plaintiff for weapons and found no knife. Id. ¶ 31. Plaintiff “then retreated from Agent Palomo to return to Ms. Springsteen's property.” Id. ¶ 32. Agent Palomo followed Plaintiff “onto Ms. Springsteen's private property, pushed him, [and] searched him.” Id. Plaintiff suffered an injury as a result of this encounter. Id.

Sometime after, Defendant Agent Michele Deleon (“Agent Deleon”) arrived at the scene. Id. at 11, ¶ 35. She immediately pulled out her taser and pointed it at Plaintiff. Id. Ms. Springsteen, who was standing on the driveway, asked officers to calm down. Id. ¶ 36. She also started recording the incident on her cellphone. Id. ¶ 37. When she realized she was being recorded, Agent Deleon put her taser back in its holster. Id.

Voluntarily, Plaintiff “sat down, and then laid down spread eagle, on the driveway so as to appear unthreatening and submissive to officers and to diffuse the situation.” Id. ¶ 40. Despite this, “three officers came up onto his property, forced him to a seated position, and forcefully and painfully handcuffed him behind his back.” Id. at 11-12, ¶ 41. Specifically, Plaintiff alleges that Agent Deleon put her “knee into [his] spine and effect[ed] a ‘twist lock.' Id. at 12, ¶ 44. Also, [a]gents forced [his] arms and wrists sickeningly backward into painful positions over and over again, causing abrasions and ligament damage.” Id. ¶ 45. Plaintiff claims that the entire encounter caused “injury to his shoulder, back, neck and wrists.” Id. at 11-12, ¶¶ 41-42. Plaintiff remained in a seated position for approximately forty-five minutes. Id. at 12, ¶ 43.

Roughly twenty-five minutes after Agent Palomo seized Plaintiff, West Mesto Fire Protection District (“West Metro”) personnel arrived. Id. at 14, ¶ 51. Plaintiff and Ms. Springsteen admitted that Plaintiff had recently consumed alcohol. Id. ¶ 52. Officers determined that this consumption of alcohol was in violation of a protective order. Id. at 13-14, ¶¶ 50, 52. Defendant Paramedic Austyn Onstott (“Paramedic Onstott”) arrived and spent sixty seconds speaking with Plaintiff. Id. at 14, ¶ 53. 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.' Id. ¶ 54. Paramedic Onstott later wrote in his report that Plaintiff “would have random spurts of uncontrollable laughter [and] . . . [w]ould start 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.” Id. at 14-15, ¶ 56. Additionally, Paramedic Onstott's report stated:

ALS assessment performed. Pt history and vitals obtained. Trauma assessment performed. Medic 7 crew did the best they could to try and calm patient down and assured pt we are here to help. Pt did not cooperate with us and became verbally aggressive and was still physically aggressive despite being in handcuffs. There was high concern for patient becoming extremely violent if not in handcuffs. After trying to calm patient multiple times, and pt being hypertensive, hot to touch, and delirious, it was determined pt was in excited delirium and administered 450 mg of Ketamine. 4-lead placed. Capnography used to monitor breathing. SPO2 monitored and continuous vitals obtained. IV administered. BGL obtained. Transported nonemergent to St. Anthony's ER and transferred care to PA in room 6.

Id. at 15, ¶ 57.

As stated in his report, Paramedic Onstott reported that Plaintiff “suffered from excited delirium.” Id. ¶ 59. Plaintiff contends that Paramedic Onstott did not follow proper protocols for how to determine “excited delirium, ” such as taking his temperature. Id. at 16, ¶ 60. Despite this, based on this “excited delirium” determination, Paramedic Onstott injected Plaintiff with ketamine. Id. at 15-16, ¶ 59.

In 2019, West Metro “was one of 63 agencies that received waivers to use ketamine in a pre-hospital setting for patients who met the clinical criteria for excited delirium and/or extreme or profound agitation.” Id. ¶ 121. “Colorado requires the medical directors of EMS agencies to obtain authority [i.e., a waiver] from the State for the agency's paramedics to be able to administer ketamine to patients in a pre-hospital setting.” Id. ¶ 116. The Doctor Defendants are the medical directors in charge of the West Metro ketamine waiver. Id. ¶ 455. Ms. Schad, “who is just an assistant, rubberstamp[ed] the approval of [Plaintiff's] ketamine administration after the fact.” Id. ¶ 174.

In the order they appear in the SAC, Plaintiff's claims are:

(1) Violation of the Fourth Amendment Pursuant to 42 U.S.C § 1983 for Excessive Force Resulting in Permanent Injury against Defendants City of Lakewood, Agent Palomo, Agent Deleon, Sgt. Bates, and Chief McCasky. ECF 134 ¶¶ 219-68.
(2) Violation of the Fourth Amendment Pursuant to 42 U.S.C. § 1983 for Excessive Force against Defendants West Metro Fire Rescue, Paramedic Onstott, EMT Herrera, and Chief Lombardi. Id. ¶¶ 269-297 (3) Violation of Substantive Due Process under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 against Defendants West Metro Fire Rescue, Paramedic Onstott, Dr. Peter Vellman, and Dr. David Richter. Id. ¶¶ 298-336.
(4) Violation of the Fourteenth Amendment for Failure to

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