The Issue The issues are presented based upon an Administrative Complaint filed by the Petitioner against the Respondent accusing the Respondent of entering into a drug trafficking agreement with an inmate in a correctional facility where the Respondent worked. This is in violation of Sections 943.13 and 943.145, Florida Statutes, per the Administrative Complaint, in that should the allegations be proven, Respondent is not felt to be qualified to hold a certificate as a correctional officer in the State of Florida, in that he has committed conduct unfitting for a correctional officer.
Findings Of Fact Respondent, Wayne A. Thomas, was a correctional officer employed at the Union Correctional Institution from August 4, 1981 through March 3, 1983. He served there under the authority of a certificate as correctional officer, which certificate had been issued by the State of Florida. At present, the Respondent's correctional officer certificate is in an inactive status. This case was presented for formal hearing based upon the Respondent's timely request for such treatment of the controversy. On March 2, 1983, Sergeant Sterling M. Esford, a correctional officer in the Union Correctional facility, was approached by an inmate, Ronald Thompson. Thompson was a person whom Esford had used as a confidential informant in the past and had found to be reliable. Thompson told Esford he had information to the effect that the Respondent was bringing quaaludes into the correctional facility to be sold. In exchange for assistance to be given an inmate Bell who was having difficulty with the prison authorities related to certain charges that they had brought against him, Thompson agreed to assist the internal security section of the institution in its efforts to investigate allegations against the Respondent. Lieutenant R. T. Lee, internal security officer, was made aware of the claims of Thompson related to Respondent's alleged drug activities and the offer by Thompson to help in the apprehension of the Respondent. Thompson told the authorities that he would need $50 to make a drug Purchase from Respondent. Lee gave Thompson $50 of money in which the serial numbers had been recorded prior to the transfer of the currency, money which had been dusted with a powder which could not be detected unless subject to ultraviolet light. Thompson then took the money on March 3, 1983 and later met with the Respondent. At the time of the meeting between Thompson and the Respondent, Thompson did not tell the Respondent that he wished to purchase drugs as he had indicated to the internal security officers that he would do. Thompson instead asked that the Respondent transmit the $50 in currency to a Marvin Jackson who was being held in a confinement section of the institution. Thompson made it known that this money was being transmitted for the benefit of one Doyle Heard, a friend of Jackson's. Thompson then gave money to the Respondent. The exact amount of the money given was not revealed, in that only $45 of the money was ever recovered and it is uncertain whether the remaining $5 was kept by Thompson, the Respondent or Marvin Jackson, who received the $45. Authorities searched the person of the Respondent and Jackson and did not find the $5. Thompson was not searched. (Respondent claims that the transmittal of the currency was in exchange for information which Thompson gave him on the subject of unauthorized weapons, which were hidden in the institution. He further claims that Thompson assisted him in searching for those weapons, although none were found. Given the testimony of other witnesses to the effect that those kinds of weapons were readily discoverable through routine searches by authorities and the fact that doing favors for inmates in exchange for information was a matter done under the guise of official sanction by authorities within the institution, which was not the case here, and the failure of the Respondent to disclose to authorities his alleged transmittal of the currency between Thompson and Jackson in exchange for information related to the location of weapons in the institution, Respondent's explanation is not believed. In other words, Respondent is not found to have told the truth when he says that he transmitted the currency between Thompson and Jackson in exchange for information related to the location of illegal weapons within the institution.) When the Respondent gave the money to Jackson, he told him that the money had been sent to him by Doyle Heard, his acquaintance. He further stated that the money was being given to him because Jackson was being transferred from that institution to another. In carrying this money from Thompson to Jackson, Respondent recognized that it was contrary to law and policy to do so, in that United States currency is considered contraband if found in the hands of an inmate and to assist in its transmittal, as opposed to turning in the contraband is a specific violation of the laws and rules of the institution. After the money transfer, Thompson indicated that he had conferred with the Respondent about the purchase of marijuana for $50 to be delivered at a later time. The authorities were led to believe from Thompson's remark that the purchase was quaaludes in exchange for $50. (Thompson denies ever having met Jackson at the time of the money being provided to Jackson in this incident.) He said he subsequently became aware of Jackson's existence. Considering his demeanor and his other testimony presented in the course of the hearing, Thompson is not believed when he says that a drug transaction took place between he and the Respondent on March 3, 1983, related to the exchange of $50 in return for drugs to be delivered at a future date. The facts demonstrate that Thompson misled the authorities about the reason for obtaining the $50 and did so to benefit Heard and Jackson. Thompson established a "scam" in order to obtain $50 for the benefit of those two inmates, and to facilitate those purposes lied about the Respondent's involvement in the subject drug deal which supposedly occurred on March 3, 1983. When the Respondent was leaving the institution on the evening of March 3, 1983, he was confronted by Lieutenant Lee and denied knowing Thompson and denied any involvement in a drug deal. The powder from the marked money was later discovered on his trousers and when confronted with that discovery, the Respondent acknowledged knowing Thompson and stated that he had delivered money to Marvin Jackson. In this interview, Respondent acknowledged that the transmittal of the currency was in violation of institutional policy. As identified by Sergeant Esford and confirmed by other correctional officers who gave testimony in the hearing, transmittal of the contraband, i.e., the U.S. currency, caused the Respondent to lose his effectiveness as a correctional officer. Respondent resigned his post following the incident. At the time of the departure, officials within the institution had found his overall performance to have been satisfactory.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since August 10, 1988, certified by the Commission as a correctional officer. He holds certificate number A86-502-07. Respondent has spent his entire career as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department (hereinafter referred to as "Metro"). He currently holds the rank of corporal. On June 26, 1989, Respondent was a Correctional Officer I and assigned to the third floor of Metro's Pre-Trial Detention Center, which is also known as the Main Jail. He worked the 3:00 p.m. to 11:00 p.m. shift that day. During the eight month period prior to June 26, 1989, Respondent served as the acting supervisor of the third floor of the Main Jail during his shift. June 26, 1989, was Corporal Darlene Beasley's first day as the Main Jail's new third floor supervisor during the 3:00 p.m. to 11:00 p.m. shift. Respondent was one of the officer's under her supervision that day. On June 26, 1989, the third floor of the Main Jail housed approximately 220 inmates in three separate wings, "A" Wing, "B" Wing and "C" Wing. John Breedlove was one of these inmates. Breedlove was 19 years old. His height was approximately five feet, eight inches. His weight was approximately 210 pounds. Breedlove had the privilege of being a trustee. Consequently, his cell was in "B" Wing, which housed all of the trustees on the floor. Trustees are inmates who are given various tasks to perform in and around the Main Jail. They perform these tasks under the supervision of a Labor Supervisor and receive monetary compensation and gain time for their services. As a general rule, trustees are accompanied to and from their work assignments by their Labor Supervisor, who signs them out when he or she takes them from the floor and signs them back in when he or she returns them to the floor. Sometimes, however, a staff member other than a Labor Supervisor will assume the responsibility of escorting trustees to and from their work assignments. Escorting trustees to and from their work assignments lessens the likelihood that they will be successful in any efforts they may make while they are out of their cells to obtain contraband and distribute the contraband to other inmates at the facility. On June 26, 1989, Breedlove was assigned trustee duty in the rear lobby of the Main Jail, which is located on the first floor of the facility. The work was to be performed during the 3:00 p.m. to 11:00 p.m. shift that day under the supervision of Labor Supervisor Ricardo Gibson. Gibson signed Breedlove out at the beginning of the shift and escorted him to his work assignment on the first floor. Sometime thereafter Breedlove asked Gibson if he could return to the third floor to get a haircut and take care of some laundry. Gibson replied that Breedlove could do so, but only after he had completed his work assignment. Later that day, after he had done some, but not all, of the work he had been assigned, Breedlove encountered Beasley, who was on the first floor to obtain information concerning the whereabouts of certain inmates assigned to her floor. Breedlove told Beasley that he had completed his work assignment and requested that she escort him to the third floor. Beasley complied with Breedlove's request. Respondent had just finished giving the inmates in "A" Wing their dinner meal when he noticed Breedlove sitting on a bench outside the attorney interview rooms located on the third floor. Respondent asked Breedlove what he was doing there. Breedlove responded that he had returned to the floor to get a haircut and to do his laundry. Respondent admonished Breedlove for being on the floor and instructed him to return to his work assignment. Respondent thereupon continued his feeding of the inmates on the floor. After he had delivered to the inmates in "B" Wing their dinner meal, Respondent again saw Breedlove outside the attorney interview rooms. Respondent asked Breedlove what he was still doing there and reminded him that he had been told to return to his work assignment. Gibson then arrived on the scene. He too admonished Breedlove for leaving his work assignment. After Gibson arrived, Respondent continued his feeding of the inmates on the floor. After he finished feeding the inmates in "C" Wing, Respondent observed that, notwithstanding his and Gibson's prior admonishments, Breedlove was still on the floor. Respondent approached Breedlove and asked him why he had not followed his instructions to leave the floor and return to his work assignment. Breedlove's response was that Beasley had brought him back to the floor. Respondent then went to speak about the matter with Beasley, who was doing paperwork in the control booth on the floor. The control booth is a secure enclosed area situated adjacent to the third floor lobby where the elevators are located. It is constructed of concrete, concrete block, one quarter inch thick polished wire glass and steel mesh. Manning the control booth is a Correctional Aide, who from his vantage point in the front of the booth can look through the glass and observe activity that is taking place in the lobby area of the floor as well as on the corridors of all three wings of the floor. Correctional Aide Harold McCartney was manning the control booth during the 3:00 p.m. to 11:00 p.m. shift on June 26, 1989. Beasley was seated at a desk behind McCartney. Respondent walked up to Beasley and asked her if she had brought Breedlove back up to the floor. Beasley indicated that she had. Respondent and Beasley then discussed the matter further. The discussion resulted in Beasley agreeing to take Breedlove back downstairs to the rear lobby to finish his work assignment. She thereupon retrieved Breedlove. She then walked to the elevators on the floor. Breedlove followed behind her. Correctional Aide Gregory McKenzie was also waiting for an elevator to go downstairs. The elevator stopped and McKenzie and Beasley walked on. Just as Breedlove was about to walk on to the elevator, he uttered, in an irritated tone of voice, some profanity. Respondent heard Breedlove. This was the final straw as far as Respondent was concerned. He believed that Breedlove was no longer deserving of the privilege of being a trustee. Respondent therefore told Breedlove that he was "busted." In jail parlance, "busted" means removed from trustee status. Any correctional officer in the Main Jail has the authority to "bust" a trustee. Respondent ordered Breedlove to get off the elevator and to go to his cell to pack his belongings. Breedlove got off the elevator and appeared to be headed in the direction of his cell in "B" Wing when he stopped, turned around and just stared at Respondent. Respondent reacted by repeating his order that Breedlove go to his cell. Breedlove, however, did not move. Respondent then started walking towards Breedlove. Breedlove then turned his back to Respondent and made an obscene remark directed at Respondent. Given Breedlove's defiance, Respondent reasonably felt that he needed to take control of the situation and physically guide Breedlove to his cell. He thus walked up to Breedlove, who was somewhere between two to eight feet from the front of the control booth, and put his hand on Breedlove's shoulder to lead him to his cell. As Respondent grabbed Breedlove by the shoulder, Breedlove suddenly started to pull away. Respondent followed after Breedlove, grabbing him by the back of his pants while trying to maintain the grasp he had on his shoulder. The struggle ended abruptly when Respondent fell on top of Breedlove and they both went to floor. Before hitting the ground, Breedlove struck his face on one of the glass panels of the control booth, breaking the glass as well as the wires inside the glass. Although it may have appeared otherwise to those who witnessed the incident, Respondent did not intentionally push or shove Breedlove into the control booth glass. The only force that Respondent purposely used against Breedlove was that which was reasonably necessary to overcome Breedlove's physical resistance to Respondent's directives that he return to his cell. Breedlove started to bleed profusely after hitting the glass. Blood was streaming down his face and onto to his shirt. Respondent was more fortunate than Breedlove. He did not come in contact with any glass. He was startled by the breaking of the glass, but uninjured. After falling to the ground, he got off of Breedlove and backed away to regain his composure. He stood by as Beasley rushed to Breedlove's aid. Beasley helped Breedlove to his feet and took him to the jail clinic to receive medical assistance. Although Respondent did not offer any assistance, his help was not needed inasmuch as Beasley had the situation under control. Breedlove suffered multiple lacerations on his right cheek as a result of the incident. At the jail clinic, bandages were wrapped around his face to control the bleeding. Because of the nature of the injury, Breedlove was referred to Jackson Memorial Hospital (hereinafter referred to as "Jackson") for further treatment. At Jackson, Breedlove was seen by a nurse practitioner. A small piece of glass was removed from his right check and he received six stitches. After taking Breedlove to the clinic, Beasley went to the office of the shift commander, Lieutenant Francie D'Erminio, to report what had happened between Respondent and Breedlove. A short time thereafter, Respondent arrived at D'Erminio's office to tell her about the incident. D'Erminio ordered that the matter be investigated. An internal investigation of the incident was conducted. Following the completion of the internal investigation, Respondent was given a 15 day suspension by Metro. Respondent successfully appealed his suspension. He subsequently was promoted to corporal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and (2) based upon such a finding, dismissing the Administrative Complaint issued against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1993.
Findings Of Fact At all times materiel hereto petitioners were inmates et Lake Correctional Institution (LCI) and were subject to discipline for failure to obey orders. Piccirillo was disciplined for failure to comply with an order to report to the infirmary or sick call. Piccirillo was aware that his name was posted on the bulletin board directing him to report to the medical department and et the time specified he failed to so report, was disciplined, and he lost gain time. A doctor visits LCI twice per week and inmates with medical problems can be seen by the doctor on these days. No patient is required to undergo medical treatment for minor ills if he so elects. Because of the limited time a doctor is available to LCI it is necessary that those inmates so designated see the doctor at the scheduled time. Inmates who do not understand an order may request clarification. If the inmate cannot read he is not punished for failure to obey written orders. Prior to disciplinary action being taken against an inmate for disobedience of orders, the disciplinary report is investigated and, after the investigator finds the charge to be true, discipline may be administered. Additionally, the inmate has a grievence procedure he may follow after the investigator recommends disciplinary action be taken. Occasionally, inmates are given orders by correctional officers which are unlawful. The inmate may obey the order and say nothing, he may obey the order and file a grievance, or he may refuse to obey he order and successfully defend the disciplinary report for failure to obey the order. It is not an offense for an inmate to refuse to obey an unlawful order.
Findings Of Fact Petitioner, William Joel Keel, is an inmate at the correctional institution in Raiford, Florida. The Union Correctional Institution is a confinement facility operated by the Respondent, Department of Corrections. Section 945.091, Florida Statutes, permits the Respondent to adopt rules and regulations which modify the limits of an inmate's confinement under specified conditions. In January 1986, the figures of the statistics of the Department of Corrections reflect that there were approximately 1300 new commitment intakes per month. As the year 1986 progressed up through the months of April and May, this rate went up to approximately 1400 to 1600 per month, and in June, the figure stood at 1680 new commitment intakes; a new record. This record, however, has been broken since that time with a monthly intake of 1700. This large number of intakes created a terrible strain on the system which at the time had reached the federal standards and the state cap on inmate strength of 98 percent. These caps are placed on inmate strength as an effort to reduce the extreme safety and security problems created by inmate overcrowding. Because there was no new staff assigned to the Department of Corrections during the period of this increase, the staff/inmate ratio decreased as the hot summer months approached with the pressure that the climate imposes. Both interior and perimeter security of the various institutions within the Department of Corrections became more and more strained. The stress on staff caused an increase of absenteeism and illness. In addition, during this period of increased temperature and the concomitant stress related thereto, assaults and escapes become a greater and greater problem. In June 1986, the inmate population in the Florida prison system went up to 99 percent, a figure approved by the Florida Legislature due to a change brought about by an automated accounting system for prisoners. The achievement of the 99 percent plus prison population constituted an "emergency" due to overcrowding. As a result, it became obvious that there was a need to increase the number of inmates eligible for pre-expiration of sentence release. Consistent therewith was the need to establish a fair and objective way of placing inmates into this pre-release program that would protect the public. It was determined necessary to screen out from participation in the program certain prohibited types of inmates such as sex offenders unless they have been cleared and determined to be harmless. Up to the point of this determination, there appeared to be no substantial or valid guidelines. Another intent of the framers of this emergency rule was the desire to set up a procedure to remove inmates placed into the pre-release program from the program for cause in accordance with due process and constitutionality. It was deemed necessary to make clear within the parameters of the program and within the instructions for the program what had to be done and how it was to be accomplished. Nonetheless, the overriding consideration which constituted the "emergency" situation was the overpopulation in the prison system. As a result, the Department of Corrections in July 1986 promulgated and published its Emergency Rule 33ER 86-3 dealing with supervised community release which rule was to take effect upon being filed with the Department of State. This rule provided that all inmates who are within 90 days of their release date will be eligible for placement on supervised community release if they meet certain specified requirements. The emergency rule listed as the basis therefor, "this emergency rule is necessary to protect the health, safety and welfare of the people of the State of Florida by providing criteria that the inmates to be placed in supervised community release must meet to help assure the safety of the public." It goes on also to indicate that the rule is necessary to prescribe appropriate sanctions for inmates within the program in the event they violate the terms and conditions of the release agreement. The program provides that the initial process is for the staff within the Department of Corrections to screen all inmates within 90 days of the end of their sentence. It was envisioned as an extension of the work release program already existing. It is for that reason that only those on or eligible for work release can participate in this new program. This is consistent with the statutory mandate to include in pre-release programs only trustworthy inmates. Inmates are also screened to ensure that they have demonstrated this trustworthiness by performing well in the more restrictive work release program. Other methods of demonstrating trustworthiness and eligibility is for the inmate to invest time in self-improvement projects such as the GED Program and to have through his past practice, shown that he will return to the prison setting at night. This screening is done monthly of all inmates with a temporary release date of 120 days in the future. By so doing, this gives the staff 30 days to develop a plan for the individual inmate to ensure a stable environment for the inmate to go to. Prior to the implementation of Chapter 86-46, Laws of Florida, the statutory authority for the current program, there was no provision for the program in issue. As soon as this law was passed the legal staff within the Department of Corrections prepared the instant emergency rule as soon as possible. Had they not been able to do an emergency rule and had the regular rulemaking process been necessary, it is most likely that they would not have had established criteria and guidelines to apply to those who had to be released due to the fact that the prison population had reached the statutory cap. In fact, it was shown that state attorneys would not cooperate with the Department of Corrections and process violations of the program unless there were specific guidelines contained therein, and, since it was necessary to reduce the inmate population, it was therefore necessary to utilize the emergency role process. With that in mind, the safety of the public into which these inmates would be released was the primary concern and generated the need to ensure that only qualified and safe inmates were released. Under the new statute and the emergency rule, 1125 inmates have been released as of the date of the hearing. Approximately 750 inmates are in the program at any given time. As a result of the implementation of this program, the prison population has dropped and remained within the new 99 percent of capacity state cap. Experience with the programs so far has shown that the inmates in the program have been guilty of only minor violations such as assault on witnesses, DWI, simple assault, and larceny. And all of these offenses came up after implementation of the emergency rule. In the case of misconduct by a released inmate which does not result in immediate charges and incarceration, such as leaving the county where placed or the state, the disciplinary team from the Department of Corrections will evaluate the inmate and impose the penalty. These penalties could include removal of gain time while still remaining within the program up to removal from the program and loss of gain time. Conditions of enrollment in the program include, as to the inmate, that he (a) stay in the area where assigned; (b) refrain from the use of drugs; (c) comply with instructions given; (d) pay court costs imposed; and (e) pay a $30 a month fee to the Department of Corrections to cover administrative costs. Though the emergency rule appears to be working satisfactorily, the Department of Corrections is in the process of regular rulemaking to adopt a permanent rule identical to the emergency rule in issue here.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Henry A. Faircloth holds certificates as a correctional officer, No. 05-83-599-01, and as a law enforcement officer, No. 16-89-222-03, both issued by petitioner Criminal Justice Standards and Training Commission; and has held them at all pertinent times. In the spring of 1988, he worked for the Florida Department of Corrections at Holmes Correctional Institution, where he held the rank of major. On May 25, 1988, he was in a meeting about ongoing construction at the prison, when Glenda Parmer told him he was needed in his office, elsewhere in the same building. She had seen James T. Watson and Charles W. Pumphrey, correctional officers who worked as sergeants at Holmes Correctional Institution, escorting Samuel Collier, an unruly and, as it turned out, intoxicated inmate toward the security complex. After Ms. Parmer, a correctional officer who worked as an administrative lieutenant, recounted events to Major Faircloth and told him "that we had some problems," (T.224) she accompanied him on the walk back toward his office. Before they reached the hall onto which Major Faircloth's office opened, they encountered the obstreperous inmate, his hands in handcuffs behind him, (T.234) a sergeant on either side. Although she came within three or four feet of the inmate, Ms. Parmer did not observe any injuries. T.220. The mail room officer, who was also within three or four feet of the inmate about this time, saw no injuries on the inmate's face, either. T.233-4. Neither did Sergeant Pumphrey, at this point. T.541. Major Faircloth, both sergeants and the inmate started down the hall and Ms. Parmer "stepped out of the way so they could go down the hallway." T.220. As he walked by them, Major Faircloth turned to Sergeants Michael Sheppard and William Paul and Inspector William T. Nobles, who were in a group talking, and told them "to wait right there, [and not to] let any inmates come down" (T.66) the hall toward Major Faircloth's office. After he had given this order, Respondent Faircloth entered his office and closed the door. T.43. Messrs. Collier, Watson and Pumphrey had preceded him through the door into the office. From outside the office, the inmate was heard interrupting Major Faircloth, cursing loudly "and raising sand." Id. During the three or four minutes that elapsed before Major Faircloth came back out of his office, four to six noises that "sounded like licks being passed," (T.44) were audible through the closed door at intervals of 30 seconds to a minute. "It sounded like flesh meeting flesh." T.150; T.178. The inmate yelled, "[D]on't hit me anymore." T.235. Major Faircloth emerged from his office without the inmate or Sergeants Pumphrey and Watson, reentering the hall where Sergeants Sheppard and Paul and Inspector Nobles still stood. Sergeant Sheppard noticed spatters of blood on Major Faircloth's shirt, although Major Faircloth was not bleeding, as far as he could see. T.46. Ms. Hutching, the mailroom officer, told Major Faircloth he needed to change shirts, "[b]ecause he had blood spattered all over his shirt." T.238. Sergeant Paul was asked "to go get three shirts . . . two white shirts and one brown shirt . . . [o]fficers' uniform shirts." T.151. Major Faircloth walked toward the control room, then stopped in front of the mailroom and flexed his right hand. When the mailroom officer inquired about his swollen knuckles, Major Faircloth responded, "I knocked that son of a bitch's tooth out." T.238. Frederick Terrell Kirkland, a classification supervisor who is not related to the assistant superintendent, saw Major Faircloth that day and noticed his hand and his blood-spattered shirt. Deposition of Kirkland. When assistant superintendent Kirkland arrived, he spoke to respondent Faircloth, then accompanied him as he went back into the office where the inmate and sergeants Pumphrey and Watson remained. At some point Lieutenant Benny Chesnut entered Major Faircloth's office. After a few minutes, Mr. Kirkland, opening then closing the office door behind him, left to go down the hall to the bathroom. When he returned, Sergeant Sheppard opened Major Faircloth's office door to let the assistant superintendent back in. As he opened the door for Mr. Kirkland, Sergeant Sheppard "saw Major Faircloth slap the inmate in the face." T.482. Samuel Collier was seated in a chair at the time, his hands still behind him in handcuffs. Standing behind Mr. Collier, Sergeant Pumphrey rested his hands on the inmate's shoulders, facing Major Faircloth, who stood in front of inmate Collier. Sergeant Watson stood by the office door. Nothing obstructed his view of Major Faircloth's striking Samuel Collier, although he turned his head and looked at Sergeant Sheppard when the door opened. T.51. "[D]id you see the son of a bitch kick me?" Major Faircloth asked the assistant superintendent. T.83. He later apologized to Mr. Kirkland for hitting the inmate in front of him. T.330, 343. After Samuel Collier had been taken away, Major Faircloth asked William Paul "to get an inmate to go clean the blood up out of his office. But then he said, no not to get the inmate, that the inmate didn't need to see that mess, for [Paul] to clean it up [him]self." T.153. In order to place Samuel Collier in solitary confinement, which was the course decided upon, he had to be sent elsewhere, because appropriate facilities were not then available at Holmes Correctional Institution. Karen Roberts, a nurse who worked at Holmes Correctional Institution, was summoned. After she drew blood, took the inmate's temperature and pulse, and made notes recording his vital signs, Mr. Collier was driven in a van to Okaloosa Correctional Institution. When Michael G. Foley, M.D., chief health officer at Okaloosa Correctional Institution, saw him shortly after lunch on May 25, 1988, Samuel Collier still had "alcohol on his breath." The parties stipulated that laboratory tests on the blood Ms. Roberts took from the inmate "revealed a .17 blood alcohol content." T.10. He had reportedly been drinking "buck," a home brew concocted from prison foodstuffs. Ms. Roberts had noticed a laceration of the upper lip which she felt "did not need suturing" (T.111) and swelling around the eyes, which she testified she attributed to the fact that Mr. Collier was crying. She "[w]anted to put ice on his eyes . . . [but] it was impossible to keep ice" (T.113), or so she testified, so she did not try it. Samuel Collier's injuries, including loose teeth Ms. Roberts overlooked, are consistent with blows received in a fight and could not have been caused by a fall against a fence post coupled with a fall out of a chair onto the floor. T.188. Samuel Collier's injuries resulted at least in part from blows Major Faircloth administered. T.188, 196. When Dr. Foley examined Mr. Collier, both of the inmate's upper eyelids were swollen. An area of his scalp was swollen. There was "a massive hematoma to the upper lip, which is a massive swelling" (T.186) that made it protrude. He "had tenderness, abrasions and contusions to both cheeks. . . [and] some loose upper incisors." T.187. Dr. Foley ordered x- rays "to make sure there w[ere] no fractures." T. 184. The radiologist concluded that no bones were broken, according to Dr. Foley. Meanwhile, Major Faircloth told some correctional officers that they "were supposed to say that he had hurt his hand doing yard work." T.294. When Sergeant Sheppard asked about filing a report, Major Faircloth told him not to "worry about it, you didn't use force," (T.58) "you're not on the duty roster, they don't even know you were here" (T.94) or words to that effect. Major Faircloth's directive contravened Department of Corrections policy, which requires any correctional officer observing force being used against an inmate to prepare a "use of force report . . . and forward it to the Inspector General's office." T.59. The next day, Major Faircloth filed a written report, Petitioner's Exhibit No. 9, reciting that Sergeants Watson and Pumphrey and Lieutenant Chesnut had used force against Samuel Collier, but omitting any mention of the force he himself had used. On June 28, 1988, while he was interrogated by Inspector G. L. McLain, he falsely denied under oath that he had hit Samuel Collier and injured his own hand. Petitioner's Exhibit No. 6. Inspector McLain had authority to administer the oath in the course of his official duties, and did so to respondent before interrogating him on June 28, 1988, and on July 6, 1988. On July 6, 1988, respondent again answered questions under oath and falsely answered affirmatively when asked whether he had been truthful during the earlier interrogation.
Recommendation It is, accordingly, RECOMMENDED: That petitioner revoke respondent's certificates both as a correctional officer and as a law enforcement officer. DONE AND ENTERED this 8th day of April, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1993. APPENDIX TO RECOMMENDED ORDER 92-1395 Petitioner's proposed findings of fact Nos. 1, 4-15, 17, 18, 20, 21, 22, 24-30 and 32-47 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 2, 3 and 31 are immaterial as to respondent Faircloth. With respect to petitioner's proposed finding of fact No. 16, it was not clear that a fence and gate were in place at the time. With respect to petitioner's proposed finding of fact No. 19, Major Faircloth first joined the group before they reached his office. With respect to petitioner's proposed finding of fact No. 23, the evidence did not clearly and convincingly establish the exact number of times respondent hit Collier. Sergeant Sheppard saw respondent slap Collier only once. But the evidence clearly and convincingly showed that respondent landed additional blow(s), causing his knuckles to swell. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 8, 9, 11, 12, 14, 15, 22 and 23 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 5, it was not clear that a fence was up and that there was a need to pass between those two posts. That Collier hit or fell into a post was not established by the weight of the credible evidence. With respect to respondent's proposed findings of fact Nos. 6 and 7, the weight of the credible evidence did not establish that Collier was bleeding when he reached the security complex. With respect to respondent's proposed finding of fact No. 10, credible evidence did not establish that Collier leapt from the chair and fell, striking a desk and the floor. With respect to respondent's proposed finding of fact No. 13, the nurse's testimony that she thought Collier's eyes were swollen because he had been crying has not been credited. With respect to respondent's proposed findings of fact Nos. 16 and 17, the nurse's findings were not "totally inconsistent." She apparently did not examine the inmate's teeth. Some of the swelling she anticipated evidently occurred. With respect to respondent's proposed finding of fact No. 18, Sheppard's testimony has been credited. With respect to respondent's proposed finding of fact No. 19, when Sheppard saw Faircloth slap Collier he might have been looking through the clear glass window. With respect to respondent's proposed finding of fact No. 20, the weight of the evidence did not establish that nobody saw Collier's injuries before he left HCI. Respondent's proposed finding of fact No. 24 is rejected as contrary to the weight of the evidence. COPIES FURNISHED TO: Joseph S. White, Esquire Gina Cassidy, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Roy M. Kinsey, Jr., Esquire Kinsey, Troxel, Johnson & Walborsky 438 East Government Street Pensacola, Florida 32501 James T. Moore, Commissioner Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Criminal Justice Standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent, Teresa D. Mejico, was certified as a correctional officer by petitioner, Criminal Justice Standards and Training Commission, on February 17, 1988, and issued certificate number 03-87-502-02. At approximately 2:45 a.m., on October 3, 1988, respondent, while employed as a correctional officer at the Broward Correctional Institute, was observed by her supervisor leaning on her desk in the officer's station at Dormitory H-4. Sitting in a chair at respondent's side was Inmate Deronda Lemmonds, who was observed holding respondent's right arm, and kissing, licking and nuzzling it, while her right hand was between respondent's legs in the area of her crotch. Respondent was immediately relieved of duty, and later that day was discharged from her employment at Broward Correctional Institute for her failure to comply with Florida Department of Corrections Rule 33-4.002(28), Florida Administrative Code. That rule provides: Employees shall maintain a professional relationship with all persons in the custody or under supervision of the Department, and their immediate family or visitors. No personal or business relationships are permitted. Marriage between employees and inmates is prohibited. That respondent was fully aware of the foregoing rule, and the standard of conduct it established, cannot be gainsaid for she acknowledged such at hearing. Notwithstanding such knowledge, however, respondent persisted in fostering the personal relationship which existed between her and Inmate Lemmonds despite denials to her superintendent that any such relationship existed and counseling from her superintendent to avoid any such relationships. Following the termination of her employment at Broward Correctional Institute, respondent maintained contact with Inmate Lemmonds through the mail and by telephone, and variously expressed her affection and love for the inmate. On one occasion, she mailed the inmate 20-25 photographs of herself, including some photographs that captured respondent in partially nude and suggestive poses. In all, the proof demonstrated that respondent was romantically involved with Inmate Lemmonds while she was employed at Broward Correctional Institute, and continued to be so involved as of the date of hearing. It further demonstrated that she was untruthful with her superintendent, failed to abide the rules of conduct for correctional officers, and neglected her duty to guard Dormitory H-4 while engaged in a liaison with an inmate under her charge.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent' s certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6410 Petitioner's proposed findings of fact are addressed as follows: 1. Adopted in paragraph 1. 2-4. Adopted in paragraph 4. 5-9. Not material or not necessary to result reached. 10-14. Adopted in paragraph 5. Adopted in paragraph 2. Adopted in paragraph 3. COPIES FURNISHED: Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Teresa D. Mejico 7502 S.W. 5th Street North Lauderdale, Florida 33068 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner was discriminated against by the Department of Corrections based on race, religion, disability, age, or in retaliation for participation in an activity protected under Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Emory Mosley, is an African-American male (Petitioner). In 1989, Petitioner was hired as a correctional officer by Respondent, the Department of Corrections (Department). Initially, he was assigned to the main unit at Madison Correctional Institution in Madison, Florida. By all accounts, during his first nine years with the Department, Petitioner was well liked by the institution's administration and his fellow officers. He was thought of as a hardworking professional officer and as one of the best officers at Madison Correctional Institution. New officers were routinely sent to Petitioner for him to train. In general and during Petitioner's employment, officers are assigned to different shifts and work assignments at Madison Correctional Institution so that officers can become familiar with all aspects of the Madison Correctional system. However, Petitioner was allowed to remain at the same post and shift for his first nine years. Over nine years, such permanence in Petitioner's assignment caused some resentment among other staff because of the perceived favoritism exhibited by the administration toward Petitioner. At some point in his ninth year with the Department, Petitioner began to perceive problems with other staff members. He concluded that certain rules were not being followed and began to believe that co-workers were in some manner conspiring against him, abusing inmates, and/or committing crimes related to their duties at the institution. His relationships with co-workers became strained. Staff and inmates began to complain about Petitioner's behavior toward them. During this time, Petitioner also complained to the warden about rule violations by staff. However, the details of these complaints were not revealed at the hearing. Petitioner's complaints did appear to be in the nature of "whistle-blowing." The evidence did not demonstrate that any of Petitioner's complaints involved any activity protected under Chapter 760, Florida Statutes. In July 1999, Colonel David McCallum transferred Petitioner to the Madison Correctional Institution work camp. The work camp was located a few hundred yards away from the main unit. The duties of a correctional officer at the work camp are primarily the same as those at the main unit with the difference that there are significantly fewer inmates at the work camp. As a result, many officers feel that the work camp is somewhat more relaxed and an "easier" assignment than an assignment at the main unit. To some officers, it is a desirable assignment. To other officers, it is not a desirable assignment. Opportunities for promotion are not diminished at the work camp; pay and benefits remain the same. The evidence did not show that transfer to the work camp was an adverse employment action on the part of the Department. Colonel McCallum, who thinks highly of Petitioner, transferred Petitioner to the work camp because he believed that Petitioner needed a change of scenery because of the problems he was having with staff and inmates at the main unit. He believed that he was doing Petitioner a favor by transferring him because of the more relaxed atmosphere at the work camp. The transfer was also made due to complaints from staff that Petitioner was receiving preferential treatment in that he was allowed to maintain the same post and shift for such a long period of time. Colonel McCallum was not aware of any complaints by Petitioner to the warden of alleged rule violations at the time that Petitioner was transferred. The evidence did not show that Petitioner was transferred in retaliation for any activity protected under Chapter 760, Florida Statutes. Petitioner's supervisor at the work camp was Lieutenant Patricia Herring, an African-American female. Herring emphatically denied at the hearing that the work camp was in any manner run as a type of concentration camp as opined by Petitioner and did not relate any race relation problems at the camp. The camp was run in a less strict manner than the main unit, especially in relation to the procedure used during the counting of inmates. These more relaxed methods greatly disturbed Petitioner, and he constantly agitated the work environment about such relaxed methods that he perceived as "rule violations." Herring testified that Petitioner was insubordinate and disrespectful to her during his time at the work camp. She believed that his disrespect came from his unhappiness with having a female supervisor. Petitioner received a written reprimand as a result of his insubordination and disrespect toward Herring. Unquestionably, Petitioner and Herring had a serious conflict between their personalities. There was no evidence that any conflict was based on discrimination or retaliation. Ms. Herring also testified that Petitioner received the same treatment as all other officers, vis-à-vis, shift and post assignments. There was no substantive evidence that Petitioner was treated differently in the assignments he was given at the work camp. There was no evidence that Petitioner sought accommodation for his diabetes or high blood pressure. Petitioner retired from the Department, effective December 1, 1999. He admitted at hearing that his retirement date had nothing to do with any actions allegedly taken against him by the Department; rather, he planned to retire on December 1, 1999, well before any problems with the Department began because that date ensured that he would receive retirement benefits based on ten years of service. There was no substantive evidence presented at the hearing that Petitioner was discriminated or retaliated against. Therefore, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 24th day of June, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Emory L. Mosley Post Office Box 8 Monticello, Florida 32345 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Respondent used excessive force to subdue a prisoner, and whether the Respondent made false official statements about the incident.
Findings Of Fact The Respondent, Tony V. Walker, was certified by the Criminal Justice Standards and Training Commission on July 7, 1989, and issued Corrections Certificate No. 05-89-502-01; and on October 9, 1990, was issued Law Enforcement Certificate No. 05-90-222-01. (See Petitioner's Exhibit 1.) At the time of the incident described in the Amended Administrative Complaint, the Respondent was working as a certified correctional officer at the Liberty Correctional Institution in Bristol, Florida. On or about November 12, 1990, the Respondent was working in the E and F dormitories of the Liberty Correctional Institution supervising inmates with Correctional Officer Wanda Terry/Rogers and Sgt. Smith. While Officer Terry/Rogers was on the phone with the medical department of the institution, the dining hall attempted to notify dormitories E and F to release their inmates for the noontime meal. When the dining hall was unable to contact dormitories E and F, dormitories G and H were called and told to release their inmates for the meal. When the inmates in dormitory E realized that dormitories E and F had been skipped in the feeding schedule, they became rowdy and belligerent. The inmates gathered around the dormitory control station cursing and complaining at Officers Terry/Rogers and Walker. Sgt. Smith was not present, having been requested by the lieutenant to assist him in the dining hall during the meal period. Officer Walker, the Respondent, attempted to calm the inmates by entering dormitory E and explaining the situation, emphasizing that the E and F inmates would be the next to go to lunch. This calmed some of the inmates, but Owen Dampier continued his verbal remonstrations about being skipped. After Walker returned into the dormitory's control room, Dampier approached the voice screen to the control room and became increasingly verbally abusive to both Walker and Terry/Rogers. His actions were causing the other inmates to again become rowdy and both Terry/Rogers and Walker felt that if Dampier's acting-out continued, it would foment an inmate disturbance. Walker had picked up an inmate's walking cane which was kept in the office for security reasons. Walker was preparing to issue the cane to the inmate to whom it belonged when Dampier screamed at Terry/Rogers and him. Walker slammed the cane against the plexiglass window and whistled at Dampier, who had turned and was walking towards the inmates clustered near the control room. Walker called Dampier back to the control room, and told Dampier that he was going to be placed in the laundry room in isolation. Terry/Rogers observed that Walker at this time was calm and was not upset by Dampier. Having told Dampier that he was going to be placed in isolation, Walker opened the door to the control room to let in Dampier. The control room door was hinged on the left side and opened into the control room. It was secured by a dead bolt lock located over the door handle on the right side of the door. As Dampier entered the room, Terry/Rogers left the desk and moved to the laundry room door to open it. Dampier stepped into the control room and stopped immediately inside the room. At this point, Dampier attempted to engage in a debate with Walker about the meal delay and refused to proceed into isolation. Dampier was facing Walker, and Walker, still holding onto the door, was standing partially behind the door, holding the door handle with his left hand. Walker released the door and it closed but was not locked. The statements of Walker, Terry/Roger and Dampier about what occurred next differ in their specifics. The following findings are based upon the testimony of Walker and Terry/Rogers and the written statement of Dampier which is corroborative of both of their statements. Dampier described his posture at this juncture as "being in Walker's face." Both Walker and Dampier were in close proximity with one another. Walker reached with his left hand to lock the door which had closed, but which had not been locked. As Walker started to reach for the door lock, Dampier perceived that he was grabbing for him and slapped Walker's hand away. Terry/Rogers, observing from across the room, saw Walker reaching for the door and assumed that he was reaching for Dampier who was standing in front of the door handle and lock. When Dampier slapped Walker's hand away, Walker felt threatened and pushed Dampier away from him with his right hand. Terry/Rogers, across the room, perceived Walker's action as an effort by Walker to grab Dampier. However, because of the location of the two men and the laundry room, it would have been extremely awkward for Walker to have grabbed at Dampier with his right hand in an effort to lead him to the laundry room which was to Walker's right and Dampier's left. Dampier's statement confirms that when Walker pushed him, Dampier pushed Walker back. Walker described Dampier's pushing him, and stated that, at this point, he struck Dampier on the chin with his closed right fist and then wrestled Dampier to the floor. Both the testimony of Terry/Rogers and the statement of Dampier confirm this. After both men fell to the floor, Terry/Rogers first locked the door to the control room, and then called the main control room for assistance. Two correctional officers supervising the yard immediately outside the dormitory responded in seconds. With their assistance, the tussle between Dampier and Walker was stopped. The Superintendent of Liberty Correctional Institution appointed an investigating officer, Inspector Stone, who interviewed Terry/Rogers, Walker and Dampier on the afternoon of November 12, 1992. Walker denied grabbing Dampier. Walker stated that he struck Dampier after Dampier pushed him. Dampier stated that Walker had grabbed him (page 4 of Dampier's statement), and also that Walker grabbed at him (page 6 of Dampier's statement). Walker admitted physical contact with Dampier and admitted striking Dampier; however, Walker stated consistently that he no recollection of grabbing Dampier by the arm. Both Walker and Dampier describe the same occurrences. Dampier's statement reports "he (Walker) grabbed at me (when) I was in his face." (Emphasis supplied.) "Then he told me to come. . . (page 6) "I pulled back like this, here, I was going to walk a little bit." (page 4, paragraph 5) "When I snatched my arm back, that's when he came up to me and pushed me." (page 4, paragraph 6) "I thought maybe he was going to swing, so I kinda like shoved him back, and he came up to be mad and he swung . . . he hit me." (page 4, paragraph 13) Walker states, "I asked him to step to me (inside the officer's station), and when he did he, uh, bowed up and he walked over to me and I opened up the door[.] I asked him to step on back to the laundry room[.] [W]hen he did, he slapped my hand back, and pushed me back and things went from there. . ." (page 3). "I hit the glass to get his attention[.] [T]hen I came down and I asked him to step inside the officer station[.] I told him to step on back to the laundry room[,] and that is when he slapped my hand and pushed me back, and started swinging[.]" Page 4. "I had my hand out to open the door, and as he stepped in[,] I let it,. . . the door[,] go back in behind me, . . . I took my hand [and] put it by my side like this, and he slapped my hand back, and pushed me back. . . I have [sic] not touched him then, until, up until then, 'til the actual squabble itself. . . . No, sir, I didn't grab him by the arm." (page 5 and 6) "He pushed me backwards, . . . finally I pushed him back and he reared back and I hit. It happened mighty fast." (Walker, page 6). In summary, both men testified to the same events, in the same order. Just after Dampier entered the room, Walker made some motion with his hand, and Dampier slapped it away. Walker pushed Dampier away from himself after Dampier slapped his hand, and a scuffle ensued in which Walker struck Dampier. What Terry/Rogers observed from across the room was not Walker grabbing Dampier with his right hand, but Walker pushing Dampier away. The slapping of Walker's left hand by Dampier with his right hand, which occurred first, was not observed by Terry/Rogers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the charges against the Respondent, Tony V. Walker, be dismissed. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of February, 1993. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1993. APPENDIX TO RECOMMENDED ORDER The Respondent did not file proposed findings. The proposed findings filed by the Petitioner were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Findings Recommended Order Paragraphs 1-9 Paragraphs 1-9 Paragraphs 10,11 Walker advised Dampier he was going to be isolated before letting Dampier into the Control Room, and it was only after Dampier entered the Control Room that they had an argument. Paragraph 12 The testimony that Walker grabbed Dampier is rejected as being contrary to that of Walker's testimony which is corroborated by Dampier's statement. Paragraphs 13-15 Paragraph 17,18 Paragraphs 16 See Comments to Paragraph 12, above. Paragraphs 17,18 Irrelevant. Paragraphs 19-21 Paragraphs 19 and 23. Paragraph 22 The testimony of Stone, as quoted in the proposed finding, makes it appear that Walker changed his story. This is incorrect. Walker never denied striking Dampier, although, he denied having grabbed Dampier by the arm at the commencement of the altercation. Paragraph 23 Irrelevant. COPIES FURNISHED: Dawn Pompey Whitehurst, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Tony V. Walker 7002 Lois Street, Apt. B Callaway, FL 32404 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
