Federal Lawsuit Pending
The widow of an Ohio man who died in police custody in Fort Myers, Florida last March, will file a federal lawsuit for violating her husband’s constitutional rights by failing to recognize that he was mentally ill.
Joyce Christie, of Girard, Ohio, and her son, plan to file the action against the Lee County Sheriff’s Office and Prison Health Services (PHS), the private company that oversees medical care for the jail, which had taken custody of Nicholas Christie for trespassing.
Her attorney, Nick DiCello (IB member), of the Cleveland firm of Spangenberg, Shibley & Liber LLP, says his firm has filed the notices required under Florida state law of an intention to sue.
“Letters of intent to file a civil lawsuit for medical malpractice, wrongful death, and civil rights violations, negligence, pain and suffering have been sent,” he tells IB News.
Christie, 62, was arrested last March after traveling from Ohio to Fort Myers while suffering, what his widow describes as a mental breakdown. Arrested twice for disorderly conduct and trespassing, Nick Christie was pepper sprayed ten times over the course of his 43-hour custody.
Suffering from emphysema, COPD, back and heart problems, the jail staff said his medical files were not available or immediately sought at the time of his arrest. But DiCello says Christie gave his medical history and list of medications to the jail days earlier during his first encounter with law enforcement.
His medication list was found in the back pocket of his pants when Christie’s personal effects were returned to his widow.
What Happened To Nick Christie?
Sometime between the time he was arrested on March 27, 2009 around 2:00 p.m., and March 31 at1:23 p.m. when he was pronounced dead, Christie had been sprayed with ten blasts of pepper spray, also known as OC (Oleo-resin Capsicum), which is a derivative of cayenne pepper.
The medical examiner has ruled his death a homicide.
On January 6, the Lee County State Attorney’s office mimicked a lengthy investigation by the Lee County Sheriff’s Office, clearing the officers of any wrongdoing in the death.
Assistant State Attorney Dean Plattner and Chief Investigator Kevin Smith found the jailers did not break policy guidelines. A separate internal review of policy was not conducted and the five corrections officers have remained on the job.
“My blood is boiling,” Joyce Christie, 59, told the News-Press. “I knew it was going to end this way because the corrections officers were never taken off their jobs during the investigation.”
A Failure to Indict
Assistant State Attorney Dean Plattner says in his memo that in order to prove manslaughter, the office would have to prove someone showed a "reckless disregard for human life" to the extent that they should have known it would likely cause death or great bodily injury.
"The facts of the case do not support this level of proof,” says the office.
Attorney DiCello says he is shocked that the state attorney didn’t come to the conclusion there was a crime.
“All he needs to come to a conclusion that there was probable cause there was a crime. The local community should have been given the opportunity to indict. They weren’t given that opportunity,” he says.
DiCello says despite the state attorney's conclusion, the federal case has a different standard of review.
“They have to prove beyond a reasonable doubt there was some type of criminal intent. We have to prove it fell beneath the standard of care and these officers knew they were violating this man’s constitutional rights.”
DiCello says strapping an obese, 62-year-old with a heart condition and COPD to a restraining chair, pepper spraying him and not allowing him water to wash off should qualify.
“Case law as a matter of law defines that conduct as a violation of constitutional rights and affords it no protection under the law,” he says.
The standard of care is established by the county and Prison Health Services, under contract with Lee County for $9 million annually, one of 160 contracts PHS holds nationwide.
Lee County, Sgt. David Valez, tells IB News the company is NCCHC accredited and “they must maintain that high standard.” There is no independent review by the county.
Under the contract, PHS is responsible for conducting a medical evaluation of everyone coming into the system.
Never Saw A Doctor
His jailers say Nicholas Christie was combative, despite the fact that he was restrained in a chair so he allegedly wouldn’t spit at his jailers.
But three inmates who shared Christie’s cell block told the Fort Meyers News-Press that they thought the use of pepper spray was excessive and that deputies ignored the victim’s pleas for help.
“While he was sitting in the chair, they sprayed him two more times,” said Ken Cutler. His whole head was turning purple and almost blue,” he says, “He was gasping.”
The other inmates say the pepper spray was so intense they were gagging in the cell block.
“He was constantly telling them I can’t breathe and I got a heart condition,” he says.
Dr. Robert Pfalzgraf, deputy chief medical examiner, concluded that stress caused by restraint and pepper spray were irritants and stressors to his heart. He says that 99 percent of the time those sprayed do not die. Christie was the 1 percent.
The medical examiner’s report indicates that the death was caused by “hypoxic encephalopathy following resuscitation for cardiac arrest, cardiac shock with congestive heart failure, physiologic stress following restraint and noxious effects of oleoresin capsicum.”
A homicide does not necessarily mean that the death was a criminal act only that it was caused by a person or persons.
DiCello says take a look at Pepper Spray on YouTube videos to see it can down someone for 40 minutes, even if it is washed off.
“You’ll see Marines crying, now imagine being sprayed ten times, you’re obese, have COPD and having a manic episode. Ten times and the last time not washed down for a half hour strapped down so you can’t rub his eyes.”
Mental Health Issues
Joyce Christie told IB News last June that her husband had started showing signs of mania. He had recently retired and thought he was going to go fishing, she said, but diverticulitis shut down his colon, then he went into a depression after being hospitalized for COPD (chronic obstructive pulmonary disease).
Christie had quit smoking years ago, but the former boilermaker worked around asbestos and nuclear power plants, she says.
His doctors had prescribed Lexapro for his depression and Joyce blames the medication for his high and low mood swings. Patients on Lexapro report mood swings and paranoia among a host of side effects, so it is advised patients gradually withdraw from the drug.
His doctor had planned to take him off the drug, but she says her husband’s medical surveillance fell between the cracks when the doctor left to work somewhere else.
In the meantime, while in Ohio, Christie was planning to paint the garage floor and take apart, clean, and re-assemble lawn furniture. He had become more outgoing and talkative, she said. When he suddenly left to go to Fort Myers to visit his brother, he went to a mall and opened a department store account, things he hadn’t done before.
Joyce Christie was so concerned she says she contacted the Lee County Sheriff’s office and issue a welfare BOLO (Be On The Lookout). Ms. Christie even had the sheriff of her home town contact Lee County to stress the seriousness of her husband’s condition and the fact that he needed to take his medication.
“He begged them to take Nick to the hospital. They said he’s having a good time, he needs a few days away. All they had to do was say ‘Let us talk to your doctor to confirm.' They didn’t do it. Captain Begowski told the officer, ‘If you don’t take him now, I’m going to tell you, you’re going to be dealing with him in a couple of hours.’”
That forecast proved true.
Christie ended up at a North Fort Myers hotel. He was initially arrested for disorderly intoxication and causing a disturbance. The counter woman at Arby’s gave Nick a free coffee because she thought he had Alzheimer’s disease.
Joyce says her husband couldn’t remember her number, or his son’s. Two days later on March 27, he was arrested again for trespassing.
This time when officers took her husband into custody, Joyce says they locked his medications in his truck and never retrieved them.
Joyce frantically flew to Fort Myers March 28, but police would not let her see Nick. She says they wouldn’t even tell him she was there. Finally, an officer suggested she could bond him out of police custody.
When she finally was allowed to see her husband it was too late.
He had been taken by ambulance to Gulf Coast Hospital where Joyce says Nick’s eyes were taped shut and he had 40 tubes taped to his body. Doctors told her he had a 10 percent chance to live. The nurses told her when he was brought in naked that he had so much pepper spray on him doctors had to change their gloves as they became saturated with the orange spray.
No one in the sheriff’s office had contacted her, and until he arrived at the hospital, Nick Christie had never seen a doctor. Someone in the hospital, shocked by his condition, suggested she contact an attorney.
“Nick had a life he was somebody my husband, a father to my son. He’s somebody I miss very much. It shouldn’t have happened. He should be here. Three weeks later I get his ashes back from Florida in a mail truck. My husband, he was somebody, he wasn’t just a nobody,” Joyce Christie says.
Attorney Nick DiCello says the state attorney's report clearing the officers will not hurt the federal case. The fact that Christie was sprayed at least once after being restrained in a chair with a hood over his head violates any qualified immunity defense the county and Prison Health Services may claim.
Besides a violation of the law, DiCello is concerned about the violation of another human being.
“Humanity has failed here. And now they aren’t going to address the failure. Us as a people, we need to recognize we’ve all failed and make it right, not ‘Let’s just move on from this failure.’ People shouldn’t do this to people. Nothing could warrant the treatment and death this guy experienced.
"A 62-yr-old retiree strapped to a chair and died. I don’t get it.” #