The father of a man who was strangled to death by a CVS store employee after being suspected of shoplifting filed a wrongful death lawsuit recently against the chain of convenience stores.

Michael A. Johnson is claiming within the personal injury suit that a CVS manager strangled his son, 34-year-old Anthony Kyser, while attempting to hold him before authorities could arrest him, according to the Chicago Sun Times. The lawsuit was filed in the Cook County Circuit Court.

Police said the struggle took place just before 11 a.m. on May 8, in the 2600 block of South Pulaski Road in Chicago. Apparently an off-duty Cook County Sheriff’s deputy stood by while the conflict ensued and did not interfere. The deputy was not named in the lawsuit.

The wrongful death lawsuit claims that the manager had chased Kyser from inside the store and down into a nearby alley, according to the Sun Times. Once the manager caught up to Kyser, he held the man in a “choke hold,” and would not let Kyser go despite his pleas that he could not breathe.

Witnesses said that Kyser, who was a Chicago resident, kept crying out, “I can’t breathe, I can’t breathe.” Witnesses to the struggle said further that it appeared the manager held Kyser in the choke hold for what seemed to be several minutes.

An off-duty Cook County Sheriff’s deputy reportedly held her gun in her hand as the struggle ensued.

Kyser was pronounced dead at 11:38 a.m. on May at Mount Sinai Hospital, according to the Cook County Medical Examiner’s office. Since his passing, an autopsy ruled that he did die from strangulation and the death was ruled a homicide by the medical examiner, according to the Sun Times.

The Chicago Police Department are treating the death as an accident and criminal charges will not be filed against the CVS manager, said CPD spokesman Daniel O’Brien.

The wrongful death lawsuit claims that the store manager assaulted and battered Kyser, and the store is responsible for the manager’s actions in Kyser’s death, according to the Sun Times.

Eight counts are detailed within the lawsuit, including a claim of false imprisonment along with the assault and battery charges. The damage amount requested from the Highland Park CVS and the manager is more than $400,000.

The manager is not being identified because he has not been charged with a crime.