by Keith Sanders and Benjamin Tschirhart

When a caregiver fails to seek medical attention for a person during an emergency, inflicting instead additional pain and suffering and looking on while that person dies, a reasonable person might conclude that the caretaker has committed criminal neglect. In fact, on October 22, 2021, the U.S. District Court for the Southern District of Indiana awarded $1 million in damages to the estate of a former pretrial detainee killed that way at the Harrison County Jail in 2018. But according to the county prosecutor, there was no crime committed at all.

On the contrary, prosecutor J. Otto Schalk determined that when a nurse working for the jail who saw a man in the middle of a life-threatening methamphetamine overdose and restrained him, stomped on his feet, choked him, shocked him with a Taser multiple times and then watched him die without ever trying to save his life, it was “objectively reasonable” treatment.

The man, Jerod Draper, was arrested and detained by county Sheriff’s deputies on October 4, 2018. While incarcerated, Draper began exhibiting erratic behavior, becoming delirious and thrashing around. That prompted guards to strip him naked and place him in an isolation cell. As his condition worsened, they put him in a restraint chair with a “spit hood” over his face and a helmet on his head. Then they left him alone in this condition for hours.

After Draper began shaking and slamming his head against the chair, guard Sgt. Matt Hulsey and jail nurse Michael Gregory returned to his cell to make Draper “calm down,” tasering him multiple times as he was confined in the restraint chair

When they were unable to bring him under control, the jailers decided to summon Emergency Medical Technicians and send Draper to the hospital. As the EMTs attempted to place the detainee on a gurney, he became unresponsive. Draper subsequently died, just six hours after arriving at the jail. He was only 40 years old.

According to an investigation by the Indianapolis Star, Draper was one of over 300 people who have died in Indiana jails over the past decade. After it was later discovered he had swallowed a bag of methamphetamine before his arrest, the coroner ruled his death an overdose.

Larry O. Wilder, Zachary F. Stewart and Marcus S. Sedwick, attorneys for Vicki Budd, who administered the estate of the deceased, filed suit in federal court for the Southern District of Indiana, accusing former Sheriff Rodney Seelye, current Sheriff Nicholas Smith, guard Cpt. Dustin Cundal, Sgt. Hulsey, Lt. Brendan Satori and nurse Gregory, as well as Nurse Practitioner Roy Washington, of causing Draper’s wrongful death by violating his constitutional rights to adequate medical care and freedom from excessive use of force, as well as for their failure to “create policies, customs and practices to prevent the conduct Draper received.”

Washington moved for judgment on the pleadings, arguing that the case was similar to McCann v. Ogle Co., 909 F.3d 881 (7th Cir. 2018), in which a doctor overprescribed methadone that was administered by a nurse who was then dismissed from a suit filed over the resulting wrongful death. But the Court said this was not an apt comparison, since Washington did not consult a doctor before prescribing Librium for Draper, believing the detainee was intoxicated, which he wasn’t. So the motion was denied. See: Vicki Budd as Pers. Rep. & Adm’r of the Estate of Jerod Scott Draper v. Seelye, 2020 U.S. Dist. LEXIS 193419 (S.D. Ind.).

To avoid further litigation, the parties and Defendants’ insurer entered into a settlement on October 22, 2021, with Budd agreeing to accept $1 million in damages, and the parties each agreeing to bear their own attorney’s fees and costs. See: Budd v. Seelye, USDC (S.D. Ind.), Case No. 4:19-cv-00231.

Experts Weigh In

Emergency room doctor Louis Profeta, a self-described “strong supporter” of law enforcement and jails, was one of a panel of medical and legal experts asked to review surveillance video of events leading up to Draper’s death. He described it as “one of the most tragic, egregious cases of medical neglect” he had ever seen.

Use of force by jail guards is typically sanctioned when necessary to secure compliance or in self-defense. But the continued use of force on someone completely restrained, incapable of resistance or violence, struck the panel’s experts as ‘‘brutal,” “sadistic” and “criminal.”

The big question is why Schalk refused to press charges against those responsible. When interviewed, he first claimed that the cause of death was an overdose, but he would not explain why he did not seek charges for criminal neglect of a dependent. Then he stated that the Indiana State Police (ISP) agreed with his decision not to bring charges, though ISP Cpt. Ron Glaviz claimed that Schalk made his choice without ever consulting his agency.

The panel of experts unanimously condemned the conduct of staff involved in the incident as deserving of criminal prosecution and called for revocation of the nurse’s medical license. That nurse, Gregory, provided an evasive rationale for his behavior during deposition for the federal lawsuit filed by Draper’s estate: He claimed that he was not only working as a nurse but was also a reserve Sheriff’s deputy, so he changed roles as the situation required.

Thus when he tortured Draper, stepping on his bare feet and tasering him, Gregory said he was not working as a nurse but a deputy. It is unclear in what capacity he believed he was working when he failed to check Draper’s vital signs even once during Draper’s entire time in custody. These actions clearly violate industry best practices, which recommend the “constant” monitoring of prisoners placed in restraint chairs, warning against use of a Taser on them.

Speaking to the media, Schalk characterized the jailers’ violence toward Draper as “pain compliance,” meaning actions intended to compel a prisoner to follow instructions, which he called the “industry standard” despite a lack of evidence that any such a standard exists within Indiana law enforcement agencies. That a man experiencing a fatal meth overdose is incapable of following instructions to calm down seemed to be lost on Schalk.

Despite the prosecutor’s insistence that no crime occurred, the settlement paid to Draper’s estate shows jail officials recognize their actions contributed to his untimely death. But given that a prisoner dies in Indiana jails every two weeks, on average, it might be better to ask just what “industry” it is these jailers work in. 

Additional source: Indianapolis Star

Subscribe today

Already a subscriber? Login

Related legal case