STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE AND TRAINING ) STANDARDS COMMISSION, )

)

Petitioner, )

)

vs. )

)

BRYAN PASSINO, )

)

Respondent. )

Case No. 05-0070PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on March 10, 2005, in Port St. Lucie, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Bryan Passino, pro se

STATEMENT OF THE ISSUES

Whether Respondent, a certified correctional officer and a certified instructor, committed the offenses alleged in the

Administrative Complaint issued November 16, 2004, and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

The Administrative Complaint dated November 16, 2004, alleged certain facts pertaining to Respondent’s interaction with three inmates. Based on those factual allegations, Petitioner charged Respondent with committing a battery on two of the inmates in violation of Section 944.35, Florida Statutes (2004)1; failing to make a report or preventing another from making a report in violation of Section 944.35, Florida Statutes2; making a false statement under oath; and failing to maintain good moral character as required by Section 943.13(7), Florida Statutes.3 Respondent timely requested a formal administrative hearing to challenge the allegations of the Administrative Complaint, the matter was referred to DOAH, and this proceeding followed.

At the final hearing, Petitioner presented the testimony of Barry E. Glover (a prison inspector employed by the Department of Corrections), Ken Torres (a correctional officer with the rank of Lieutenant), and a prison inmate (who testified by telephone because he was incarcerated in Miami-Dade County). In addition, Petitioner offered 11 sequentially numbered exhibits, each of which was admitted into evidence. Respondent testified

on his own behalf and presented two exhibits, both of which were admitted into evidence.

The Transcript of the proceedings was filed March 24, 2005.

The parties filed Proposed Recommended Orders which have been duly-considered by the undersigned in the preparation of this Recommended Order.4

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer and as an instructor.

2. At all times relevant to this proceeding, Respondent was employed by the Florida Department of Corrections (DOC) at its Indian River Correctional Institution (IRCI) with the rank of Major.

3. At all times relevant to this proceeding, Ken Torres was employed by the DOC at IRCI with the rank of Lieutenant.

4. On June 11, 2003, Tvaris Burch, Errol Whiley, and Keith Conley were inmates at IRCI. At no time did any of these three inmates have authorization to be in Respondent’s office at IRCI.

5. The only door to Respondent’s office opens to a long hallway. This door is normally locked. At approximately 6:15 p.m. on June 11, 2003, Respondent entered his office at IRCI and was followed by Lt. Torres.

6. Respondent and Lt. Torres saw three inmates on the floor attempting to hide under Respondent’s desk. Each inmate attempted to conceal his identity by pulling his tee shirt up over his head.

7. It is undisputed that both Respondent and Lt. Torres ordered the three inmates to come out from under the desk and the inmates refused those orders. It is also undisputed that the inmates came out from under the desk after Respondent threatened to order Lt. Torres to spray them with chemical agents.

8. What happened next is the center of the dispute in this proceeding. Petitioner alleged that Respondent kicked one of the inmates and that he kicked and punched another inmate as they came out from under his desk. Petitioner also alleged that Respondent failed to file a mandatory Use of Force Report and that he lied to an investigator (Mr. Glover) in a sworn statement. Respondent asserted that he did not kick or otherwise use unauthorized force against any of the three inmates, that he had no reason to file a use of force report, and that he did not lie to the investigator.

9. In support of its allegations, Petitioner presented the testimony of inmate Burch, Mr. Glover, and Lt. Torres. In addition, Petitioner presented the investigative report prepared

   by Mr. Glover and certain affidavits gathered by Mr. Glover during the course of his investigation.

10. The following facts are not in dispute. After the three inmates came out from under the desk and were on their feet, they were ordered to remove the tee shirts from their heads and were identified as being inmates Burch, Whiley, and Conley. They were stripped searched by Respondent and Lt. Torres and contraband was removed from them.

11. Additional security was called and took the three inmates to the prison nurse for a pre-confinement physical. This type medical examination is mandatory for an inmate about to be confined for disciplinary purposes. The inmates did not complain to anyone that they had been injured or mistreated by Respondent or by anyone else. The nurses noted no injury on any of the inmates. The three inmates were then confined for disciplinary reasons.

12. An incident report was written and a Disciplinary Report was filed for each of the three inmates. Neither Respondent nor Lt. Torres filed a Use of Force Report, which is a mandatory report after physical force is used against an inmate.

13. On June 12, 2003, approximately 24 hours after the incident in Respondent’s office, both inmate Burch and inmate

    Whiley declared a medical emergency. Both inmates were promptly taken to the medial unit and examined by prison nurses.

14. Inmate Burch told nurse Rhea Harris that he had been injured by being kicked in the head, but he would not identify the person who kicked him. At the final hearing, inmate Burch testified that Respondent kicked him in the head as he was coming out from under the desk and in the knee when he tried to stand up. He further testified that the blow to the knee caused him to fall to the floor, which broke his glasses. Ms. Harris observed a bump on the side of inmate Burch’s head that could be consistent with inmate Burch’s being kicked.5

15. Inmate Whiley was seen by Nurse Debra Barriner on

    
    

    June 11 and June 12, 2003. On June 12, 2003, inmate Whiley told Ms. Barriner that he had a sore neck and a sore area on his face on the left cheek. Ms. Barriner observed areas of slight swelling and discoloration that were consistent with inmate Whiley’s complaints. Inmate Whiley refused to tell the nurse what caused his neck and left cheek to become sore. In an affidavit subsequently secured by Mr. Glover, inmate Whiley alleged that Respondent had kicked him as he was coming out from under the desk and hit him in the stomach after he stood up.

16. In an affidavit secured by Mr. Glover, inmate Conley stated that he was not struck by Respondent on June 11, 2003, but that he saw Respondent strike inmates Burch and Whiley.

17. Approximately a week after the incident in Respondent’s office, corrections officers intercepted a note being passed from the cell of inmates Burch and Whiley to the cell of inmate Conley. This note was turned over to Lt. Torres, who was the shift supervisor, who testified that he threw the note away and could not recall its details. Lt. Torres did recall that the note made a reference to his being promoted as a result of the allegations that had been made against Respondent.

18. In a sworn interview given to Mr. Glover, Lt. Torres stated that he saw Respondent kick inmates Burch and Whiley. He repeated that statement at the formal hearing. On closer examination, Lt. Torres testified that he did not witness Respondent make physical contact with any of the inmates, but that he saw him making kicking motions in the directions of the inmates. On further examination, the following exchange occurred between Petitioner’s counsel and Lt. Torres beginning at page 85, line 22 of the Transcript:

    Q. Let me ask you this: If you did not see Major Passino actually strike an inmate, why then did you feel that it was necessary to report such an incident.[6]

    A. Why did I feel that? That’s my responsibility.

    Q. At the time that this incident occurred, why did you consider that there had been a use of force.

    A. Why?

    Q. Yes.

    A. Only because of what the inmates said, that they were injured, did I suspect that there was a use of force.

    Q. And that was only after the inmates had declared a medical emergency –

    A. Yes, sir.

    
    

19. Respondent’s testimony that he did not use unauthorized force against inmates Burch and Whiley is found to be credible.

20. The conflict in the evidence is resolved by finding that Petitioner failed to prove by clear and convincing evidence that Respondent battered inmate Burch or Whiley.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

22. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge, 645 So.2d 398 (Fla. 1994). The following statement has been repeatedly cited in discussions of the clear and convincing evidence standard:

    Clear and convincing evidence requires that the evidence must be found to be

    credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

23. All allegations against Respondent are dependent on Petitioner’s allegations that he battered inmates Burch and Whiley. Petitioner did not meet its burden of proving by clear and convincing evidence that Respondent used unauthorized physical force against inmates Burch and Whiley. Respondent’s denial that he used unauthorized physical force against inmates Burch and Whiley is, at a minimum, as credible as the evidence presented by Petitioner. As a consequence of Petitioner’s failure to prove its factual predicate, all charges against Respondent should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing all counts of the Administrative Complaint.

DONE AND ENTERED this 24th day of, June, 2005, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2005.

ENDNOTES

1/ All statutory references are to Florida Statutes (2004). All rule references are to the version of the rule published in the Florida Administrative Code as of the date of this Recommended Order.

2/ Petitioner did not pursue the allegation that Respondent prevented another to make a required report.

3/ The foregoing is intended to be an overview of the Administrative Complaint. Any question as to the contents of this or any other pleading should be resolved by reading the pleading in its entirety.

4/ Without objection, Respondent’s motion to set the deadline for the filing of Proposed Recommended Orders was set for

June 10, 2005. This motion was granted based on Respondent’s representation that he would be working out-of-state as a truck driver (the employment he began after he lost his employment as a correctional officer) from March 12 until the beginning of June.

5/ The bump could also have been caused by a myriad of other causes.

6/ This report was initially made to Lt. Torres’s union representative in July after the prison inspector had started his investigation.

COPIES FURNISHED:

Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Bryan Passino

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Guy M. Tunnel, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 05-000070PL

Orders for Case No: 05-000070PL