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Family sues Chautauqua County Jail after video shows inmate’s struggling to breathe

The jailhouse video, grainy and dark at times, provides a minute-by-minute account of Martellion J. Ham’s “I can’t breathe” moment.

Early on in the recording, Ham, in the midst of an asthma attack, can be seen weaving and staggering as he’s escorted back to his cell in the Chautauqua County Jail.

About a half-hour later, the 43-year-old Fredonia man appears again, this time on a stretcher being wheeled out of his cell.

Ham died a few hours later.

“What happened to him in that jail was wrong,” said his wife, Tonya Ham, her eyes wet with tears. “And what happened to him was completely preventable and unnecessary.”

Ham’s death in April came less than a year after Eric Garner, an asthmatic, died as the result of a police chokehold in New York City and grabbed headlines across the country. Garner’s last words – “I can’t breathe” – became a rallying cry for protesters.

There’s no suggestion of excessive force in Ham’s case but there is the family’s allegation that inadequate medical care at the jail caused his premature death.

Tonya Ham wonders why her husband, a lifelong asthmatic, was told he would have to wait until morning when he asked for medication that night. She also wonders why the jail waited until he was unconscious to call for help.

Ham’s family is also relying on an independent autopsy by the Erie County medical examiner that confirmed Ham’s “acute attack” that night in late April and said one of the consequences was a lack of oxygen to his brain.

“She should have called an ambulance,” Tonya Ham said of the nurse on duty at the jail that day. “Someone should have done something.”

For Ham’s wife, the hard part is understanding why it took so long for her husband to get the medical attention he needed. She also wonders why no one at the Chautauqua County Sheriff’s Office ever called to say, “I’m sorry.”

The apology finally arrived last week but as part of a public statement from the Sheriff’s Office denying responsibility for Ham’s death.

“Once the severity of Mr. Ham’s condition became evident, 911 was contacted, an ambulance was summoned and emergency first aid was administered,” said Undersheriff Charles J. Holder.

Holder claims Ham’s own “inattention to his condition” contributed to his death. He wouldn’t elaborate, but his office’s incident reports indicate Ham had received the last in a series of pills for his asthma that day. The reports also suggest Ham had recently been an uncooperative patient when it came to his maintenance medications.

“After having thoroughly reviewed the incident,” Holder said, “I sincerely believe my staff took appropriate action.”

For Ham’s family, the next step is a federal lawsuit accusing the Sheriff’s Office of violating Ham’s civil rights by denying him proper medical care. The suit will also seek damages for his wife and children.

“Martellion Ham’s death is tragic,” said Andrew Brautigam, the Fredonia lawyer representing the family. “I am confident that the justice system will resolve this appropriately for his family.”

‘Wanted to breathe’

To hear his wife talk, Ham, who would have turned 44 on Sunday, was a bigger-than-life personality, a fun-loving man with a spirit that made people like him almost instantly.

He loved to cook and barbecue and spent hours in front of the TV watching cooking shows. The only thing he enjoyed more, his wife said, was spending time with his kids.

“He was just fun,” said his wife of five years. “Everyone loved him. No one had a bad thing to say about him.”

Ham also had his struggles with drugs and run-ins with the law, but family members said that shouldn’t minimize what happened to him that night in the county jail. He was serving time for a misdemeanor driving while intoxicated conviction at the time of his death.

“He was just so giving with everybody,” said Janet Nichols, his mother-in-law and next-door neighbor. “There was no one he didn’t like, and he always tried to bring out the best in people.” In short, Nichols said, her son-in-law deserved better.

Tonya Ham said jail officials were aware of her husband’s severe asthma condition and long history of hospitalizations. She also noted that he suffered a similar, almost fatal attack while in state prison on a drug conviction seven years ago.

“He just wanted to breathe,” she said. “That’s all he wanted.”

Ham said she talked to her husband on the day he died and, at his urging, called the nurse and asked her to prescribe him medication. It was the last time she would ever talk to him.

“We said our love-yous and goodbyes,” she said of the conversation. “The next thing I know it’s 1:30 in the morning and the phone is ringing. I knew it was the jail calling.”

‘Anxiety attack’

Ham died in Erie County Medical Center after being transported from Westfield Memorial Hospital shortly after midnight that day.

In a document detailing what happened that night, jail officials said three guards saw Ham using his “rescue inhaler.” They also claim that, when the nurse checked on Ham at about 6 p.m., his breathing capacity was estimated at 95 percent, or near normal.

“He was neither gasping for air nor was he wheezing or coughing,” said one jailhouse document detailing the incident. “His behavior was more like an individual with an anxiety attack rather than an asthma attack.”

One of the reports details the nurse’s treatment of Ham and, at one point, notes that her actions were based in part on the prescription pill treatments he had just finished and the fact that his doctor had not ordered a new prescription.

Jail officials say the nurse was responsive and went out of her way to contact Ham’s doctor before she left for the day. They say the doctor never called back.

Tonya Ham shook her head in disbelief when a reporter told her about the claims of an anxiety attack. She also wondered aloud how a jailhouse guard could make that kind of medical observation.

When asked who she believes is responsible for her husband’s death, Ham didn’t single out any one individual at the jail.

“I pretty much hold the whole facility responsible,” she said.

And what should be their punishment? Ham’s lawsuit, which her lawyer says will be filed after Jan. 1, will ask for monetary damages, but she insists it’s about more than money. She also wants to make the jail accountable for what happened to her husband.

“I want to make sure his family is taken care of,” she said of a possible monetary settlement. “But I also want to make sure this doesn’t happen again.”