The Issue Whether grievance procedures set forth in the provisions challenged are arbitrary and capricious and an abuse of respondent's discretion? Whether the policy and procedure directive and policy memorandum should be declared invalid as rules?
Findings Of Fact At the various institutions in which respondent houses some 29,000 prisoners, about 8,000 grievances are acted on annually. In addition, departmental personnel in Tallahassee decide 2,000 grievances annually, of which all but two or three hundred are appeals. Nineteen percent of departmental decisions on the merits of grievances are in favor of the inmate. Not every grievance has been handled in strict adherence to every particular of rule, policy directive and policy memorandum, nor are the requirements these documents lay down always identical. The hearing officer ruled that the merits of any specific grievance proceeding were not relevant. On one occasion, the correctional officer complained of in a grievance was the officer to whom investigation of the grievance was assigned. At Union Correctional Institution, Dan Williams deals with 200 to 250 grievances monthly, turning back grievances that are not signed, dated or concise, or which do not reflect resort to informal measures. Occasionally, Mr. Williams drafts a preliminary response on the merits or "combine[s] . . . [an investigative] report . . . with the directives and the institutional operating procedures and, based on a collection of those two, . . . draft[s] a preliminary response." (T. 189.) Ordinarily, a superior signs the responses Mr. Williams drafts. Petitioners are inmates at Union Correctional Institution. Joe Lewis Holland and Douglas L. Adams had grievances pending at the time of the hearing. Carl Cribbs and John Russell have filed grievances in the past, but the evidence did not show them to have filed any grievance not already disposed of. Petitioner Rufu did not testify at hearing. Petitioners do not complain of the procedures attending promulgation of Rule 33-3.07, Florida Administrative Code, which provides: Inmate Grievance Procedure. The purpose of this procedure is to provide an inmate with a channel for the administrative settlement of the legitimate grievance. A grievance is a formal complaint concerning an incident, policy, or condition with the institution or the Department of Corrections. Most valid grievances can be resolved quickly through direct contact with the staff of the institution who are responsible for the particular area of the problem. Inmates should he encouraged to use routine informal remedies prior to initiating a formal grievance. However, when an inmate feels he has sufficient reason to submit an official formal grievance, he should obtain a copy of the request form for administrative remedy or appeal; all facts should be listed accordingly. Only one grievance per form can be initiated. The grievance complaint must be filed no later than 30 calendar days from the date on which the basis of the complaint occurred, unless it is clearly demonstrated by the inmate that it was not feasible to file within such a period. The Assistant Superintendent of the institution will have the grievance complaint logged and will have a receipt sent to the inmate. He may handle the grievance personally or he may designate appropriate staff members to investigate and/or respond. If a staff member investigates and responds, he too will sign the form along with the Assistant Superintendent. The response should state clearly why the grievance is approved or disapproved. If approved, it should state what action will be taken to correct the problem. One copy will be placed in the inmate file and two copies will be returned to the inmate advising of action taken. When an inmate feels that he may be adversely affected by submission of his grievance at the institutional leval because of its sensitive nature he may mail his grievance directly to the Secretary. He must clearly indicate a valid reason for not initially bringing his complaint to the attention of the institutional staff. Grievances of this type may be sealed in an envelope by the inmate and processed through routine institutional mail channels. Institutional officials will have up to 30 days, including holidays and weekends from the receipt of the grievance to take action and respond to the inmate. When the grievance is, in the opinion of the Assistant Superintendent, of an emergency nature, a reply should be made as soon as possible. If the inmate feels his or her grievance has not been satisfactorily resolved at the institutional level, he or she may appeal to the Secretary. If the inmate files a formal grievance form to the Secretary the factual basis for appeal must be clearly stated in Part A and a copy of the original grievance and response at the institutional level attached. If the inmate fails to provide a reason for appeal or attach a copy of his institutional grievance and response or the Secretary feels that the reason supplied is not adequate, the appeal must be returned to the inmate and reasons for return will be specified in Part B. The Secretary or his designated representative will have a receipt sent to the inmate. He will cause the appeal to be investigated and will have up to 30 days, including weekends and holidays from receipt of the appeal form to make a response. A copy of the response to the inmate will be sent to the superintendent and a copy filed in the Central Office. The Superintendent's copy will be reviewed and filed in the Institution. The time limit cannot be met either at the institutional or departmental level, the time limit may be extended for a reasonable period not to exceed thirty (30) days. If this action is taken the complainant will be notified in writing with the time of extension noted. A record must be made of each grievance or appeal and should contain at least the following information: Inmate name, prison number, date of receipt, subject of grievance or appeal, disposition of the grievance or appeal, and date of disposition. A copy of this record should be filed monthly in the Superintendent's or the Secretary's office. Inmates can be assured that no action will be taken against them resulting from submitting a grievance unless they knowingly and intentionally make a statement which is proved false pursuant to a disciplinary proceeding. They contend that the rule does not afford a neutral, detached factfinder, and is arbitrary and capricious for that and other reasons. On the same substantive grounds, and on the additional ground that neither was promulgated as a rule, petitioners challenge Policy and Procedure Directive 4.07.02 (PPD 4.07.02) and Union Correctional Institution Policy Memorandum 82-14 (UCI Memo 82-14) which provide: Inmate Grievance Procedure Authority: The provisions of this directive are authorized by: Florida Statutes, Chapters 944.09(2) and 945.21. Rules and Regulations of the Department of Offender Rehabilitation, Chapter 33-3.07. General Policy Statement: The purpose of this procedure is to provide an inmate with a channel for the administrative settlement of a legitimate grievance. A grievance is a formal complaint concerning an incident, policy or condition within an institution or the Department. Most valid grievances can be resolved quickly through direct contact with staff who are responsible in the particular area of the problem. This is the preferred course of action. Staff awareness of the importance of prompt attention and reply to these routine requests will minimize the use of formal grievance procedures. In addition to providing the inmate an opportunity of having a grievance heard, such procedure will assist the Department by providing additional means for internal solution of problems and improve lines of communication. This procedure will also provide a written record in the event of subsequent judicial or administrative review. Informal Remedy: In most cases an inmate may resolve the problem by discussing it with: The staff member responsible in the particular area of the problem. The Classification Team. The appropriate section head. Other institutional staff. This method should provide an immediate solution to the problem and can be handled by personal contact, letter or request for interview. An inmate should be encouraged to use routine informal remedy procedures prior to initiating a formal grievance. Formal Institutional Remedy: The Superintendent may designate the Assistant Superintendent as representative, delegating the authority to receive, review and investigate any grievance of an institutional nature, and to grant and implement relief as approved by the Superintendent. When an inmate has reason to submit an official grievance, a copy of the Request for Administrative Remedy, Form DC-77 (See Sample No. 1) may be obtained from the staff member designated by the Superintendent. The inmate should fill out the identifying data at the top and Part A of the request so that it is legible. All facts should be listed accurately and the aggrieved inmate is requested to substantiate that the informal remedy procedures have been exhausted as stated in the Section above on Informal Remedy. Inmates who cannot read or write or who cannot write legibly are authorized to obtain assistance from other inmates, so long as the assistance requested does not interfere with the security and good order of the institution. In cases where inmate assistance is either not available or cannot be made available, staff members will assist the inmate. Only one issue/question should be listed on each form. The form should then be forwarded to the Superintendent or Assistant Superintendent. Time Limit On Filing A Grievance: The grievance must be filed no later than 30 calendar days from the date on which the grievous complaint occurred or within 30 calendar days after final action was decided which would result in a grievance complaint being initiated. An extension of the 30-day period may be granted when it is clearly demonstrated by the inmate to the satisfaction of the Superintendent or Assistant Superintendent that it was not feasible to file within the initial period. Appeals must be filed within 30 calendar days following the date of disposition of the original institutional grievance. Procedures For Processing Grievance: The Superintendent or Assistant Superintendent will have the grievance logged and will have a receipt sent to the inmate. The Superintendent or Assistant Superintendent may investigate the grievance personally or may designate an appropriate staff member to investigate and prepare a report. The Superintendent or Assistant Superintendent will evaluate the investigative report for use in formal consideration of the grievance. The Superintendent or Assistant Superintendent will respond to the grievance by completing Part B of Form DC-77. If approved, the response should state what action will be taken to correct the problem. If denied, the response must state the reasons for denial and the information to justify the denial. Distribution will be as follows: The original and second copy will be returned to the inmate. The first copy will be placed in the inmate record. All grievances, except those filed directly with the Regional Director or Secretary, must be filed at the institution in which the inmate is presently assigned. When the complaint deals with a grievance that has occurred at another location, it will remain the responsibility of the staff at the inmate's present location to handle the grievance. Direct contact with staff at the inmate's prior location may he necessary in resolving the grievance. Direct Grievance Request: When an inmate feels that because of the sensitive nature or possible adversity by submission of the grievance at the institution, direct submission to the Regional Director or Secretary may be accomplished by use of Form DC-77-A (See Sample No. 2). The inmate may mail in sealed envelope the direct grievance request. The inmate must clearly indicate the reason for not initially bringing the complaint to the attention of the institution staff. Upon receipt of the direct grievance report, the Regional Director, Secretary or designee will have the grievance logged and a receipt sent to the inmate. If the Regional Director, Secretary or designee feels that the inmate's reason for not processing the complaint through institutional channels is invalid, Form DC-77-A will be returned to the inmate, with the reasons for return specified in Part B. Should it be determined that the grievance was properly channeled to the Regional Director or Secretary, the complaint will then be investigated and Part B of Form DC-77-A will be completed. If approved, the response should state what action will be taken to correct the problem. If denied, the response must state the reasons for denial and the information to justify the denial. Distribution will be as follows: Original to inmate. First copy of the response will be filed in the Office of Use Regional Director or the Office of the Secretary. Second copy will be forwarded to the Superintendent for review and subsequent filing in the institutional inmate record. Time Limit For Response: Response to grievance will be made within 30 calendar days from date of receipt. When, in the opinion of the Superintendent or Assistant Superintendent, Regional Director or Secretary the grievance is of an emergency nature, a reply should be made as soon as possible. Formal Department Level Appeal: If the inmate feels the grievance has not been satisfactorily resolved at the institution level, an appeal, Form DC-77-A, may be submitted to the Regional Director or Secretary. In such cases, the factual basis for the appeal must be clearly stated in Part A and a copy of Form DC-77 (the original grievance and response at the institutional level) must be attached. Appeals should be forwarded to the Regional Director or Secretary through routine institutional mail channels. If the inmate does not provide substantial reason for appeal or attach a copy of the original grievance and response (Form DC-77) and the Regional Director or Secretary determines that the reason lacks support, the appeal request will be returned to the inmate and findings for return will be specified in Part B. Action By The Regional Director Or Secretary: The Regional Director, Secretary or designee will have a record made of all Form DC-77-A (grievance appeals) received and will have a receipt sent to the inmate. The appeal will be investigated within 30 calendar days from receipt of the appeal. Distribution will be as follows: The original will be returned to the inmate. The first copy will be placed in the inmate record in the Bureau of Offender Records with a copy of Form DC-77 attached. The second copy will be sent to the Superintendent for review and subsequent filing in the institutional inmate record. When Time Limit Cannot Be Met: The period of time referred to for action at the institution, Region or Central Office level may be extended for a reasonable period not to exceed 30 days, upon finding that the circumstances are such that the initial period is insufficient to make an appropriate decision. This action must be communicated in writing to the inmate with the time of the extension noted. Record Keeping As previously stated, a record should be made of each grievance or appeal and should contain at least the following information: Inmate name Prison number Date the grievance was filed Date received Nature of grievance or appeal and issue/question to be resolved Disposition of grievance or appeal Date of disposition A copy of this record, Form DC-78 (See Sample No. 3), should be filed monthly in the Superintendent's, Regional Director's or Secretary's office. Freedom To Use Grievance Procedure: Inmates can be assured that no action will be taken against them resulting from submission of a grievance, unless, facts show acts designed to render false or misleading statements. Policy and Procedure Directive 4.07.02. 82-14.1 Authority Florida Statutes, Chapter 944.09, 945.21 Department of Corrections Policy & Procedure Directive 4.07.02. 82-14.2 Purpose The purpose of this procedure is to provide an inmate with a channel for the administrative settlement of a legitimate grievance. A grievance is a formal complaint concerning an incident, policy or condition within an institution or the Department of Corrections. Most valid grievances can be resolved quickly through direct contact with staff who are responsible in the particular area of the problem. This is the preferred course of action. Staff awareness of the importance of prompt attention and reply to these routine requests will minimize the use of formal grievance procedures. In addition to providing the inmate an opportunity of having this grievance heard, such a procedure assists the Administration by providing an additional vehicle for internal solution of problems and improves lines of communication. Further, it provides a written record in the event of subsequent judicial or administrative review. 82-14.3 Informal Remedy In most cases, an inmate may resolve his problem by discussing it with (1) the staff member responsible in the particular area of the problem; (2) his Treatment Team; (3) the appropriate Department Head; or (4) other institutional staff. This method should provide an immediate resolution to the problem and can be handled by personal contact, letter, request for interview form, et cetera. An inmate should be encouraged to use the informal remedy procedures prior to initiating a formal grievance. 82-14.4 Formal Institutional Remedy The Assistant Superintendents shall have the authority to receive, review, and investigate any grievance of an institutional nature and to grant and implement relief as approved by the Superintendent. When an inmate feels he has reason to submit an official grievance, he should obtain a copy of the Request for Administrative Remedy Form (DC 1-303) from the appropriate Classification Team Specialist or the Law Librarian. He should check the box marked "Assistant Superintendent" and fill out the identifying data at the top of the form and Part A of the request (DC 1-303) so that it is readable. All facts should be listed accurately, and the aggrieved inmate is directed to substantiate that the informal remedy procedures have been exhausted as stated in Section 82-14.3 above. Only one grievance per form can be initiated. The grievance is to be filed by one individual inmate with his signature only appearing on the grievance. The DC 1-303 then should be forwarded to the Assistant Superintendents' Office. Grievances submitted or signed by more than one inmate will be returned unanswered to the senders as being improperly filled out. Inmates who cannot read or write, or who cannot write legible, are authorized to obtain assistance from other inmates, so long as the assistance requested does not interfere with the security and good order of the institution. In cases where inmate assistance is either not available or cannot be made available, staff members will assist the inmate. 82-14.5 Time Limit on Filing Complaint The grievance must be filed no later than 30 calendar days from the date on which the grievous complaint occurred or within 30 calendar days after final action was decided which would result in a grievance complaint being initiated. An extension of the 30-day period may be granted when it is clearly demonstrated by the inmate to the satisfaction of the Assistant Superintendents that it was not feasible to file within the initial period. Appeals must be filed within 30 calendar days following the date of disposition of the original institutional grievance. 82-14.6 Procedures for Processing Grievance The Assistant Superintendents will have the grievance logged and will have a receipt sent to the inmate. They may investigate the grievance personally, or may designate an appropriate staff member to investigate and prepare a report for use in formal consideration of the grievance. The Assistant Superintendents will respond to the grievance (Part B), clearly stating why the grievance is approved or denied. If approved, the response should state what action will be taken to correct the problem. If denied, the response must state the reasons for denial and the information to justify denial. The first copy will he place in the inmate file, and the original and second copy will be returned to the inmate. All grievances, except those filed directly with the Regional Director or Secretary, must be filed with staff at the institution to which the inmate is presently assigned. When the complaint deals with a grievance that has occurred at another location, it will remain the responsibility of the staff at the inmate's present location to handle the grievance. Direct contact with staff at the inmate's prior location may be necessary to resolve grievances which occur under this provision. When an inmate feels that because of its sensitive nature he may be adversely affected by submission of his grievance at the institution level, he may, by checking the box marked "Secretary, Florida Department of Corrections" on Form DC 1-303, submit his grievance directly to the Regional Director or Secretary in a sealed envelope processed through routine institutional mail channels. He must clearly indicate a valid reason for not initially bringing his complaint to the attention of the institution staff. Upon receipt of Form DC 1-303 the Regional Director, Secretary, or his designee will have the grievance logged in and a receipt sent to the inmate. If the Regional Director, Secretary, or his designee feels that the inmate's reason for not processing his complaint through institutional channels is invalid, Form DC 1-303 will be returned to the inmate, with the reasons for return specified in Part B. Should it be determined that the grievance was properly channeled to the Regional Director or Secretary, the complaint will then be investigated and the original of Form DC 1-303, with appropriate response (Part B), will be forwarded to the inmate. The first copy of the response will be filed in the office of the Regional Director or the office of the Secretary; the second copy forwarded to the Superintendent for his review and subsequent filing in the institutional inmate file. 82-14.7 Time Limit for Response Responses to grievances will be made within 30 calendar days from date of receipt. When in the opinion of the Assistant Superintendents, Regional Director, or Secretary, the grievance is of an emergency nature, a reply should be made as soon as possible. 82-14.8 Formal Department Level Appeal If the inmate feels his grievance has not been satisfactorily resolved at the institutional level, he may appeal, using Form DC 1-303, checking the appropriate box and submitting his appeal to the Regional Director, Secretary or designee. In such cases, the factual basis for appeal must be clearly stated in Part A and a copy of Form DC 1-303, the original grievance and response at the institutional level, must be attached. Appeals should be forwarded to the Regional Director or Secretary through routine institutional mail channels. If the inmate does not provide a reason for appeal, or attach a copy of his original grievance and response, or the Regional Director or Secretary feels that the reason supplied is not adequate, the appeal request will be returned to the inmate and reasons for return will be specified in Part B. 82-14.9 Action by the Director The Regional Director, Secretary or designee will have a record made of appeals received and will have a receipt sent to the inmate. He will cause the appeal to be investigated and will have up to 30 calendar days from receipt of the appeal form to make a response. The original Direct Appeal Form will be returned to the inmate. The first copy (with copy of the Institutional Appeal attached) will be placed in the inmate record in the Bureau of Offender Records. The second copy will be sent to the Superintendent for his review and subsequent filing in the institutional inmate file. 82-14.10 When Time Limit Cannot Be Met The period of time referred to for action at the institution, Region, or Department level may be extended for a reasonable period not to exceed 30 days, upon finding that the circumstances are such that the initial period is insufficient to make an appropriate decision. This action must be communicated in writing to the complainant with the time of the extension noted. 82-14.11 Record Keeping As previously stated, a record should be made of each grievance or appeal and should contain at least the following information: Inmate Name, Prison Number, Date Grievance was filed, Date of Receipt, Nature of Grievance or Appeal, and Issued Question to be resolved, Disposition of Grievance or Appeal, and Date of Disposition. A copy of this record should be filed monthly in the Assistant Superintendents', Regional Director's or Secretary's Office. 82-14.12 Freedom no Use Grievance Procedure Inmates can be assured that no action will be taken against them requiring from submission of an grievance unless they knowingly and intentionally make a statement which is proven false beyond a reasonable doubt pursuant to disciplinary procedures. An inmate should report to Administrative Staff any threats or other punitive type actions taken by staff personnel. 82-14.13 Fact Finder This facility has been selected to initiate a pilot program utilizing volunteer attorneys to hear inmate grievances. These scheduled visits will be coordinated by the Assistant Superintendent for Programs, who has been designated as institutional coordinator. Hearings will he administrative in nature and the attorneys nay utilize tape recorders if desired. Fact Finders will forward their written reports to D. H. Brierton, Project Coordinator. The Fact Finder report is advisory and will be considered by the Secretary in making his final decision on the grievance. Union Correctional Institution Policy Memorandum 82-14. George W. Bedingfield, respondent's inmate grievance administrator, conceded that UCI Memo 82-14.13 states matters not covered by Rule 33-3.07, Florida Administrative Code. As a practical matter, however, funds for the experimental project contemplated by UCI Memo 82-14.13 are now depleted. Respondent conceded at hearing that so much of PPD 4.07.02 as provides, "The aggrieved inmate is requested to substantiate that the informal remedy procedures have been exhausted and like language in UCI Memo 82-14.4, depart from Rule 33-3.07, Florida Administrative Code. Respondent's proposed order includes proposed findings of fact which have been adopted, in substance, in large part. Proposed findings have been rejected where unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Findings Of Fact On August 28, 1987, Respondent, David E. Hancock, was certified by the Criminal Justice Standards and Training Commission as a correctional officer, holding certificate #11-87-502-02. On March 4, 1988, Respondent, Floyd W. Winkle, was certified by the Criminal Justice Standards and Training Commission as a correctional officer, holding certificate #11-87-502-03. In March, 1989, Respondents were employed as correctional officers by the Corrections Corporation of America (CCA). CCA operates the county corrections facilities for Bay Counnty, Florida. Additionally, CCA is responsible for booking new arrestees into the jail facility. On March 11, 1989, Respondent Hancock was the supervisor of the night shift at the main jail facility in Bay County. Respondent Winkle was the booking officer. The evening of the 11th was a very heavy evening for arrests. The facility was understaffed for the numbers of arrests being processed. In fact, the holding cells, located in the basement of the jail, were full and female prisoners were being held in the interview rooms across the hall from the holding cells. Marcus Kitchens was brought to the jail in a highly intoxicated state. He was bleeding and exhibited lacerations and abrasions to his face and limbs. Mr. Kitchens was also in a very noisy and rowdy state. During the course of the evening, one of the female prisoners requested to use the restroom facilities. These facilities are located in the holding cells which were occupied by the male prisoners. The male prisoners were transfered to an interview room so that the female prisoner could use the restroom facility in the holding cell. The transfer was made by Officer Winkle. One of the inmates was Marcus Kitchens. He had not yet been officially booked into the jail. While transferring the male prisoners back to the holding cell Mr. Kitchens asked Officer Winkle for a blanket. For a number of valid security reasons jail policy does not permit a prisoner to have a blanket until the prisoner is officially booked into the facility and on his her her way to a more permanent cell. When Mr. Kitchens was told that he could not have a blanket he became violent and charged Officer Winkle, hitting the officer on the left side of face with his fist and knocking the officer's glasses off. Officer Winkle pushed Mr. Kitchens into the holding cell. Mr. Kitchens grabbed Officer Winkle by the shirt and pulled him into the holding cell with him. The two landed up against one of the walls of the holding cell and Mr. Kitchens hit Officer Winkle several more times in the chest and abdomen with his fist. While Officer Winkle was trying to block the blows, Mr. Kitchens hit Officer Winkle again on the left side of the face. Officer Winkle then grabbed Mr. Kitchens and put him on the floor. Officer Hancock heard the noise from the altercation and responded from another part of the basement area to the site of the altercation. By the time Officer Hancock arrived, Officer Winkle had Mr. Kitchens on the floor. Officer Winkle was sitting on top of Mr. Kitchens trying to subdue him. Officer Hancock stepped in between Officer Winkle and the inmate, put his knee into Mr. Kitchens chest, grasped the shoulder area and shoved Mr. Kitchens against the back wall of the holding cell. Officer Hancock inquired if Officer Winkle was alright. After Officer Winkle responded that he was, Officer Hancock told him to leave the cell. Officer Winkle left the cell and Officer Hancock released Mr. Kitchens from the wall. Mr. Kitchens began to charge Officer Hancock. Officer Hancock ordered him not to move and Mr. Kitchens sat back down on the floor. Officer Hancock left the cell and the door was locked. The entire altercation to the close of the cell door lasted a maximum of two and one-half minutes. It was while Respondents were in the holding cell with Mr. Kitchens that the alleged excessive use of force occurred by Officer Winkle banging Mr. Kitchens' head against the floor and hitting him three times on the side of the head with his fist after Mr. Kitchens had submitted to the officers. The use of excessive force was testified to by an officer who arrived from another part of the basement area after the altercation began and who could only have seen the last few seconds of the incident. The only testimony this officer gave regarding Officer Hancock was that while he was leaning against the cell wall he told Officer Winkle that Mr. Kitchens was "all his" after which Officer Winkle allegedly banged Mr. Kitchens' head on the floor and punched him on the side of the head. Contrary to this officer's testimony and corroborative of Respondents' testimony was the testimony of the nurse on duty at the jail facility. She did not see any excessive use of force and did not hear Officer Hancock make the statement referenced above while the officers were in the holding cell. She also testified that Mr. Kitchen's appeared to be struggling somewhat while he was on the floor. Officer Hancock testified that he told Officer Winkle Mr. Kitchens was "all his" after the officers had locked the door to the holding cell. Officer Hancock made the statement in response to Officer Winkle's complaint that he needed help in booking. The statement was meant to communicate to Officer Winkle that help would not be forthcoming and that he had to handle Mr. Kitchens during the booking process. Clearly, given the facts of this case, such a vague statement, regardless of where it was made, does not constitute clear and convincing evidence that Officer Hancock aided, abetted, counseled or procured any battery being effected against Mr. Kitchens. Moreover, this case boils down to a swearing match between the various parties and witnesses involved. On these facts and given the demeanor of the witnesses, such a swearing match does not constitute clear and convincing evidence that Respondents have failed to maintain the good moral character required of correctional officers. Additionally, given the fact that the Respondents were subdueing a violent inmate and the very short time span in which the alleged use of force occurred it is improbable that any excessive force was used which would reflect on the character of either Respondent. Therefore the Administrative Complaints against each Respondent should be dismissed. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the amended Administrative Complaints filed against David E. Hancock and Floyd W. Winkle be dismissed. DONE and ORDERED this 13th day of January, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1992.
Findings Of Fact Prior to his termination, Petitioner had been employed as a Correctional Officer by the Respondent, Department of Corrections, at Glades Correctional Institute for approximately two years. On April 3, 1987, Petitioner signed a written statement acknowledging that he was immediately responsible for reading the rules of the Respondent. Petitioner's immediate supervisor was Mr. Edward Minor, Correctional Officer Supervisor at Glades Correctional Institute. Mr. Chester Lambdin is the Superintendent of Glades Correctional Institute. Although he felt ill, Petitioner reported to work on January 25, 1989 before his scheduled eight hour work shift was to begin at midnight and continue through January 26, 1989. Petitioner left work due to his illness before the end of his January 26, 1989 shift. Petitioner did not report to work after he left on January 26, 1989. On January 26, 1989, Petitioner contacted his supervisor, Mr. Minor, and informed him that he was ill; that he would not report to work for about two days and that he had a doctor's excuse for his absence. Mr. Minor excused Petitioner for two days, January 27, 1989 and January 28, 1989. Petitioner's doctor's excuse covered the period of January 27, 1989 through January 30, 1989. Petitioner gave the excuse to a fellow worker and requested the associate to deliver the excuse to Mr. Minor. Before February 2, 1989, Mr. Minor did not see the excuse. Petitioner did not contact Mr. Minor until the afternoon or evening of February 2, 1989. Petitioner was not scheduled to work on January 30 or January 31, 1989. Petitioner stated that he knew he should contact his supervisor before each work shift if he were ill and would not report to work, but he stated that most of his fellow workers did not follow the procedure and were not penalized for failure to make the required report. Notice before an absence is the standard policy of the Respondent. Petitioner was on unauthorized leave on January 29, 1989, February 1, 1989 and February 2, 1989. On February 3, 1989, Mr. Lambdin drafted a letter to Petitioner, which was posted by certified mail, informing Petitioner that he had been deemed to have abandoned his position as a Correctional Officer I at Glades Correctional Institution and to have resigned from the career service system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned his position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May 1989. JANE C. HAYMAN 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 15th day of May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. The Respondent was the sole party who submitted Proposed Findings of Fact. Specific Rulings on Proposed Findings of Fact Adopted in Finding of Fact 1. Adopted in part in Finding of Fact 2; rejected in part as not supported by competent and substantial evidence. Rejected as conclusion of law. Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Findings of Fact 6 and 7. Adopted in Findings of Fact 5 and 11. Adopted in Findings of Fact 5 and 11. As to first sentence, rejected as irrelevant. As to the remainder, adopted in Findings of Fact 15 and 12. Adopted in Finding of Fact 16. Adopted in Finding of Fact 14. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Lynne Winston, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1550 Mr. Lewis C. Stewart 692 Waddel Way Pahokee, Florida 33476 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Varga, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
Findings Of Fact At all times pertinent to the allegations concerned herein, Respondent, William M. Floyd has been certified as a corrections officer in Florida under certificate number C- 7585, dated May 23, 1980. He had been certified prior to that time under another Commission procedure. The Commission is the state agency responsible for certifying law enforcement and corrections officers in Florida. Throughout the majority of the year 1986, Respondent was employed as a corrections officer at the Department of Corrections' Tampa Corrections Work Release Center. When he was arrested for grand theft during 1986, he advised his boss that he intended to plead not guilty. Because of his prior eight years of good work and based on his representations, he was not discharged and was allowed to keep his employment. Approximately six months later, Respondent was hospitalized for what his doctors thought was cancer of the spine. While he was in the hospital, his attorneys convinced him that due to his poor health, it would be to his advantage to plead nolo contendere and avoid the stress of a trial and thereafter negotiated an arrangement with the state attorney that in exchange for the plea of nolo contendere, adjudication of guilt would be withheld and Respondent would be placed on two years probation. Respondent entered that plea in open court on November 10, 1986 in the Circuit Court of Hillsborough County and was placed on two years probation. He was promised that at the successful completion of his term of probation, his record would be sealed from the public but not from law enforcement officials. Respondent is looking forward to that happening. After his court appearance, Respondent resigned from his position as a corrections officer with the Department of Corrections, he claims, due to his poor health. On December 4, 1986, the Department of Corrections advised the Petitioner, Commission, however, that Respondent had resigned his position due to the fact that he was placed on two years probation for grand theft. The documentation in question was not presented at the hearing, however, but the basis for Respondent's resignation is irrelevant. The seminal issue here is Respondent's plea of nolo contendere to a felony and of that there is no question. Respondent is not now employed as a corrections officer or in any law enforcement capacity. As a result, he does not need his certification. However, because of the nature of the charges against him, and what he believes is a lack of culpability on his part, (not further explained); and because he may some day again want to work as a corrections officer, he wants to keep his certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the certification of Respondent, WILLIAM M. FLOYD, as a corrections officer be revoked. RECOMMENDED this 23rd day of January, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 23rd day of January, 1989. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Post Office Box 1489 Tallahassee, Florida 32302 William M. Floyd Post Office Box 1084 Gibsonton, Florida 33534 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether petitioner should suspend or revoke respondent's certification as a correctional officer for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Edward L. Bonifay, III has held a correctional officer's certificate at all pertinent times. From October 1, 1980, till November 3, 1982, he worked for the Escambia County Sheriff's Department. When he left, his certificate automatically became inactive. (Testimony of Frick) Except in emergency circumstances not pertinent here, the Escambia County Sheriff's Department has a firm, written policy against male correctional officers entering the female housing area in the Escambia County Jail unless accompanied by a female correctional officer. The Jail Operations Manual, which Mr. Bonifay purported to have read more than once, states the policy. He was told about it. Everybody who works at the jail is aware of the policy. (Testimony of Eddings) The Jail Operations Manual also stated the requirement that any escape attempt be reported in writing. Nell Vaughn shared a cell with several other women at the Escambia County Jail in September of 1982, at a time when Minnie Squires had the adjacent cell to herself. On several occasions, including at least two in September of 1982, Ms. Squires asked other inmates to summon respondent Bonifay. At least twice in September of 1982 he arrived at her cell door alone and touched her when she came to the door undressed. Ms. Vaughn, who sometimes monitored events next door through a peephole, observed this. Bonifay admitted as much to two fellow officers, although he claimed, in one rendition, that she was trying to escape and that he was obliged to grab her breast to prevent the escape, although, he conceded, maybe he did leave his hand on her breast "too long" and maybe his hand did "slide down her stomach." To Nell Vaughn it looked like he was fondling her breasts while they were both inside the cell, after any conceivable risk of escape must have been well past. Nor does the escape hypothesis explain why Ms. Vaughn saw his hand in Ms. Squires' crotch. Respondent Bonifay never made any written report of an escape attempt on Ms. Squires' part, and made no written report of having visited a woman prisoner's cell unaccompanied by a female correctional officer. Once the events of September came to light, his superiors lost confidence in him and he was unable to function as a correctional officer in the jail. His credibility was called into question and his effectiveness was lost. (Testimony of Eddings, Jones) Petitioner filed its proposed findings of fact and conclusions of law, and the proposed findings of fact have been adopted, in substance for the most part. To the extent they have been rejected, they have been deemed immaterial, cumulative, subordinate or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's certification as a correctional officer. DONE and ENTERED this 8th day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Post Office Fox 1849 Tallahassee, Florida 32302 Edward L. Bonifay, III 228 Cordoba Street Gulf Breeze, Florida 32561 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact I find the following facts based on the facts admitted by both parties in the Prehearing Stipulation filed on May 22, 1987. Florida Administrative Code Chapter 33, as found in the Florida Administrative Code Annotated, through the March 1987 supplement, is true and correct. The Petitioner's current address is Douglas M. Jackson, Inmate Number 823916, Florida State Prison, Post Office Box 747, Starke, Florida 32091. The Respondent's name and address is Florida Department of Corrections, 1311 Winewood Boulevard, Tallahassee, Florida 32399-2500. The Department rule on which an administrative determination is sought is Florida Administrative Code Rule 33-3.007, "Inmate Grievance Procedure." The statutory provision on which the above Department rule is based is Section 944.331, Florida Statutes, which states: The department shall establish by rule an inmate grievance procedure which shall conform to the Minimum Standards for Inmate Grievance Procedures as promulgated by the United States Department of Justice pursuant to 42 U.S.C. s. 1997e. The ten (10) days in Florida Administrative Code Rule 33-3.007(13), which deals with the filing of appeals of grievances, are "10 calendar days." This can include two weekends (a total of four days) when mail is not normally picked up at the prisons or delivered in the Office of the Secretary. If an inmate receives his institutional response on a Friday that is dated for the previous day (Thursday), his response must be received in Tallahassee by the following Friday. (The second Sunday following would be ten (10) days from the date of the institutional grievance, but the Central Office Inmate Grievance Administrator does not work on Saturday or Sunday to receive and log inmate grievance appeals). Florida Administrative Code Rules 33-3.007(6)(a) and (7) require the availability of grievance forms at all Department institutions. If the inmate needs a day to obtain a grievance appeal form and prepare it, he will not be able to mail his appeal until Sunday. But, there is no mail service on Sunday so his grievance appeal will not be mailed until Monday at the earliest. This means the grievance appeal must get from the prison to the Office of the Secretary in four (4) days or it will be denied as out-of-time. Florida Administrative Code Rule 33-3.007(8) provides that: An extension of the 15-day period [to file at the institutional level] will be granted when it is clearly demonstrated by the inmate to the satisfaction of the Superintendent or Assistant Superintendent that it was not feasible to file the grievance within the 15- day period. Florida Administrative Code Rule 33-3.007(15), which covers the filing of the grievance appeal, imposes an absolute requirement of ten (10) calendar days. No possibility exists under the rule, as promulgated, for the slightest extension of time for any possible reason, no matter how meritorious it might be. Florida Administrative Code Rule 33-3.007 does not inform the inmate that he must utilize the grievance procedure to exhaust his administrative remedies before he can file a petition for writ of habeas corpus, challenging the loss of gain time or confinement as a result of a disciplinary proceeding. Florida Administrative Code Rule 33-3.007 has been submitted to the United States Department of Justice for certification approval under the provisions of Section 944.331, Florida Statutes and 42 U.S.C. s. 1997e. Florida Administrative Code Rules 33-3.0025(11)(c), 33-3.012(1)(b)3, 33-3.012(4)(e), and Florida Administrative Code Chapter 33-22 have not been submitted to the United States Department of Justice for certification approval.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensure practices and discipline of correction officers in the State of Florida. The Respondent is a certified corrections officer in the State of Florida, employed at times pertinent hereto at Broward Correctional Institution as a Corrections Officer I. On June 17, 1982, assistant personnel manager for the Broward Correctional Institution, Virginia Dolson, was arriving at the institution for work at approximately 7:40 a.m. She and her companion, Marie Lombardi, walked past the guard post occupied by a vehicle in which the Respondent was sitting. As they approached the vehicle closely, they noticed that the Respondent was asleep with his head leaning against the screen over the vehicle window on the driver's side. They spoke loudly in his presence and he took no notice. Finally, another corrections officer, Sergeant Pepitone, tapped on the side of the vehicle with her umbrella, causing the Respondent to awaken. On June 24, 1982, at approximately 7:50 a.m., Marie Lombardi and Virginia Dolson, were leaving the parking lot, approaching their work place and observed the Respondent standing near a vehicle parked on guard post #1. They observed the Respondent aim a pump-action shotgun into the air, sight down the barrel and pump the gun twice as though a round were being placed into the chamber. It is the policy of the Department of Corrections to never remove a weapon from a vehicle unless "probable cause exists for doing so. Correction officers are instructed not to remove such weapons from vehicles while merely standing beside a vehicle on a guard post. On June 25, 1982, Lieutenant George Palacios, a shift lieutenant with the Broward Correctional Institute was on duty at the central control room. He attempted to communicate with Officer McWhorter on guard post #2 that day and his initial response was very slow. Later that morning, at approximately 7:15 a.m., he again attempted to contact Officer McWhorter and received no response on Officer McWhorter's truck radio. Lieutenant Burnstein and Sergeants Brothers and Moskowitz then drove to the Respondent's guard post and observed the Respondent sitting in his truck on post #2 with his head leaning against the window on the driver's side. They walked close to the truck and observed the Respondent with eyes closed and mouth open, appearing to be asleep. The window was half open and from a distance of about 3 feet, Officer Burstein said, "Officer McWhorter are you awake?" He received no response and repeated this statement three times, each time receiving no response from the Respondent. Sergeant Brothers walked around the truck, directly in front of McWhorter, and waved his arms and again received no response from Officer McWhorter. Officer Burstein did the same and then walked to the side of the truck and hit it with his hand. The Respondent still did not move. He hit the truck a second time and McWhorter moved his head and appeared to reach down at the floor of the truck. At that point the Respondent was relieved of his duties at post #2 and he and Lieutenant Burnstein came back to the office of the "captain" at the administrative offices of the institution. Captain Thomas, the Respondent's supervisor was advised of the incident. A meeting was conducted to discuss this incident with the Respondent during the course of which the Respondent's behavior was characterized by incoherent, confused speech, and bloodshot, glazed-appearing eyes. Officers Moskowitz, Brothers and Burnstein opined that he appeared to be under the influence of alcohol or drugs. Captain Thomas, pursuant to Rule 33-4.02(10), Florida Administrative Code, asked the Respondent to submit to a urinalysis and blood test, but the Respondent refused. On other occasions, Sergeant Brothers had observed the Respondent appearing to be under the influence of alcohol or drugs in that his conduct was characterized by slurred speech, eyes that did not dilate, uncontrollable eye movements and a general appearance of disorientation. Superintendent Robert Bowler, formerly of Broward Correctional Institution at times pertinent hereto, also had a meeting with the Respondent on June 25, 1982, and observed that the Respondent appeared to be "under the influence" that morning in that he appeared disheveled, groggy and otherwise disoriented. It has been established that the Respondent was under the influence of alcohol or another intoxicant on the above occasion. On May 25, 1982, Sergeant Aldean Wright, a Corrections Officer II at Broward Correctional Institution, was acting officer in charge. On that evening, the Respondent was assigned to perimeter post #2 for one-half of the shift, but left his post without permission and went to a truck stop for breakfast before reporting inside the institution for the second-half of his shift. He then lied about his whereabouts during that absence. Sergeant Wright remonstrated with him about his absence from his post without leave and gave him a written reprimand. (Petitioner's Exhibit G) Former correctional security shift supervisor, John Kording, described past disciplinary counseling directed at the Respondent for an infraction involving inattention at his post position, specifically, performing mechanical work on his "post vehicle" when he should have been observant of his assigned portion of the compound and inmates. This incident occurred in July, 1981. On December 22, 1981, Officer McWhorter wrote and submitted an incident report directed to the Assistant Superintendent of the institution, circumventing the security department's chain of command and was "counseled" regarding this infraction by Mr. Kording. No evidence was adduced regarding his use of unnecessary force upon an inmate however. The Respondent was an employee at Broward Correctional Institution from 1978 through July, 1982. For the above-stated infractions, the Respondent was terminated with prejudice in July, 1982. The Respondent had been furnished all pertinent rules for employee conduct for correctional officers such as himself when employed at this institution and for the Department of Corrections, among which rules was that which prohibited the use of narcotics or intoxicants while on duty, as shown by a receipt for the rules signed by the Respondent (Exhibit N). The Respondent was aware of the pertinent rules of conduct with which he was to comply during his employment with the Department of Corrections and failed to adhere to them.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the arguments of the Petitioner, It is, RECOMMENDED: That Corrections Officer Certificate No. C-6698, held by the Respondent Craig C. McWhorter, be revoked. DONE and ENTERED this 28th day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Craig McWhorter 1131 Northeast 201 Terrace North Miami Beach, Florida 33179 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue This case arises out of a challenge by the Petitioners to the validity of Rule 33-3.02(6), Florida Administrative Code; Policy and Procedure Directive 2.02.13, and Union Correctional Institution Operating Procedure No. 81-82. The Petitioners specifically challenge the validity of those portions of the above- provisions relating to the issue of clothing to the inmates. At the final hearing, Petitioners, Joseph Redman, Nyadzi D. Rufu and Jimmy L. Rogers, testified on their own behalf and also called as witnesses Charles Connors and Paul Gunning. Petitioners offered and had admitted into evidence five exhibits. Respondents called no witnesses and offered no exhibits into evidence. The Petitioner S. B. Ridley, did not appear at the formal hearing. The Hearing Officer was informed by one of the other Petitioners at the formal hearing that Mr. Ridley had been transferred to Polk Correctional Institution. Mr. Ridley was given due notice of the hearing held on February 17, 1984, and has filed no pleading or motion with the undersigned Hearing Officer seeking either a continuance or other relief. The Petitioners and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as unsupported by the evidence or as unnecessary to a resolution of this cause.
Findings Of Fact The Petitioners, Joseph Redman, Nyadzi D. Rufu and Jimmy L. Rogers are inmates incarcerated at Union Correctional Institution, Raiford, Florida. On November 5, 1982, as Petitioner Rogers was being released from disciplinary confinement, he entered the laundry to obtain another pair of state issued pants, socks and underwear. The name tag was coming off of his jacket and because of this it was confiscated. He asked for another jacket and was told he could not be issued one. He was eventually issued another jacket which was also confiscated. For a period of time, Petitioner Rogers had no jacket for those times when he was required to walk and be outside in the cold. The laundry manager at Union Correctional Institution is responsible for the issue of all clothing to the prisoners. The manager follows Union Correctional Institution Operating Procedure 81-82 in issuing clothing an Union Correctional Institution. That operating procedure provides in relevant part: 81-82.1 Purpose This memorandum is published as a guide in the issuance of inmate clothing, and the providing of laundry facilities for the inmate population. 81-82.2 Authority Florida Statutes 945.21, 944.09 section 20.315 Department of Corrections Administrative Rules, Chapter 33-3.02(6). 81-82.3 Clothing Issue Each inmate shall be issued the following clothing items: 3 each Blue Shirts 3 pairs Blue Trousers 1 each Web Belt 1 pair Boxer Shorts 1 pair Socks 1 pair Shoes, High Top. Inmates assigned to the Food Service Departments and Canteens shall be issued one additional suit of clothing because of their having to work on Sundays, enabling them to change clothing daily. 81-82.6 Special Issue Inmate Jackets are issued in October of each year and picked up for storage in April. An inmate may have his jacket laundered on any Friday. Hats, caps, and other special clothing items are issued to the Department Supervisor for distribution to the work squad. The Supervisor is responsible for those items of issue. 81-82.7 Miscellaneous Information The Laundry Manager/Clothing Officer shall maintain a record of the various clothing items issued to each inmate. If clothing issue is abused, either through neglect or by intent, the officer will initiate appropriate action. The official inmate uniform throughout the institution is issue blue shirt and trousers. Inmates assigned to the following areas are issued white shirts and trousers in lieu of the regular blue uniform: Food Service Administration Building Workers Main Gate Workers Utility Man on each Close Supervision Squad (For Identification) Canteen Workers. Each inmate who turns in a jacket (at the end of winter) shall be issued a pair of hemmed walking shorts for wearing on the athletic field or after hours in the housing area. The manager was not aware of and has not utilized Policy and Procedure Directive 2.02.13, in issuing clothing at Union Correctional Institution. That policy and procedure directive provides in relevant part: AUTHORITY: Section 20.315, 944.09 and 945.21, Florida Statutes Department of Corrections, Administrative Rules, Chapter 33-3.02(6) PURPOSE: The purpose of this Directive is to establish a uniform procedure for issuing inmate clothing and linens. This will enable the Department to control the costs of clothing and linens in a more economical manner. GENERAL: Appropriate internal measures will be taken by each operating location to implement the provisions of this Directive. It is the Department's expressed intent that all inmate clothing be appropriately fitted and suited for the environment and that Departmental facilities provide sufficient laundering facilities to ensure that appropriate health standards are maintained. The clothing and linen will be exchanged on a one for one basis after the initial issue. Should an inmate intentionally damage or destroy his/her uniforms, appropriate action should be taken by the Superintendent to reimburse the State, if possible. It is imperative that the custodial staff be well informed of the provisions of this Directive and any exceptions or deviations from this Policy set forth will have to be approved by the Regional Director. STANDARD CLOTHING ISSUE (MALE): Each male inmate may be issued the items of clothing and linen specified below. The phrase "Maximum Clothing Issue" is used in this Directive to permit the substitution of personal clothing or to permit the issuance of less than maximum quantities where appropriate. Unless otherwise designated, the inmate will not have excess clothing and linens in his possession. Each inmate will be responsible for the clothing and linen issued to him. Maximum Clothing Issue - Blues and Whites Items Quantity Shirts 3 for 5 day post 5 for 7 day post 3 for 5 day post 5 for 7 day post Maximum Clothing Issue - Other Items Items Quantity Undershorts 3 pairs Undershirts/T shirts 3 Socks 2 pairs (changed daily) Belt with Buckle 1 Shoes 1 pair Jacket (winter only) 1 Long underwear (winter only for outside detail) 2 Regions III, IV and V may substitute two sweatshirts for two pairs of long underwear for winter use. E. Clothing - Special Items such as food service linens, coverall's aprons, cooks' caps, gloves, rubber boots, raincoats, athletic uniforms, barber and butcher jackets, straw hats and safety helmets shall be considered tools of the trade and will be issued directly to the department requiring them. The superintendent will, on recommendation and justification by department head, determine what items are to be purchased and issued to inmate. All items issued on a departmental basis that can be appropriately marked shall have the standardized department initials stenciled on the item. It will be the responsibility of the superintendent to establish a laundry schedule for these items. Only those inmates who work outside for eight hours each day are issued long underwear during the winter months. The inmates do not go outside when the temperature is below 40 degrees. The laundry does not issue raincoats to the inmates. The raincoats are under industry inventory and each department can draw raincoats out of that inventory. The raincoats are paid for by the department drawing them out and the work supervisor from that department issues them to the inmates. Raincoats are sold in the canteen at Union Correctional Institution. The laundry stocks long underwear but no longer stocks T-shirts. The laundry does not stock sweatshirts. There are two types of blue uniforms. The laundry issues coveralls to special jobs but no coveralls are issued to inmates personally. It is within the laundry manager's discretion as to when he issues new clothing as opposed to used clothing. It is the laundry manager's responsibility to remain within his budget for the year. T-shirts are not included in the list of clothing issue items in Union Correctional Institution Operating Procedure 81-82. This may be due in part to budget restrictions. T-shirts are included in the "maximum clothing issue" list in Policy and Procedure Directive 2.02.13. Practically every inmate in Union Correctional Institution is required to go outside in order to go to work or to school. The inmates must also go outside in order to go to the chow hall or the clinic. The west unit is approximately a 4 or 5 minute walk from the chow hall. Union Correctional Institution Operating Procedure No. 81-82 is signed and issued by the Superintendent of UCI and cites as its authority Florida Statutes 945.21, 944.09, Section 20.315, and Rule 3303.02(6), Florida Administrative Code. The Respondent has not contested the fact that the operating procedure was not promulgated in accordance with the requirements of Section 120.54, Florida Statutes. There was no evidence presented as to the procedures followed in adopting the Policy and Procedure Directive 2.02.13.
The Issue The issue is whether Respondent is guilty of failing to maintain good moral character and, if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on April 28, 1988, and issued him certificate number 86967. At all material times, the Miami-Dade Department of Corrections and Rehabilitation employed Petitioner as a correctional officer. At the time of this incident, Respondent worked at the Turner Guilford Knight Correctional Center (TGK). For December 20-21, 1999, Respondent reported to TGK for a shift that began at 10:30 p.m. on December 20 and ended at 6:30 a.m. on the next morning. Respondent's position was a unit manager of Unit K4-2. As the unit manager, Respondent was responsible for the care, custody, and control of all inmates in this unit. This responsibility included the duty of ensuring that all inmates were present and accounted for in the unit, and Respondent was required to conduct an inmate headcount and in- cell checks of all inmates. Correctional officers conducting in-cell checks document the time of their checks on a Visual Checks log. The purpose of the Visual Checks log is to inform the correctional officer's superior and other correctional officers that the officer entering the information in the log walked the entire unit at the time noted and visually checked all inmates housed in the unit. If, as is customary, the correctional officer found nothing amiss, he would enter "QRU" in the log, which informs his superior and other correctional officers that all was well in the unit at the time indicated for the check. During his shift of December 20-21, 1999, Respondent made seven entries in the Visual Checks log for his unit. The indicated times were hourly, on the hour, from 11:00 p.m. on December 20 through 6:00 a.m. on December 21. For each entry, Respondent recorded a headcount and wrote in the Visual Checks log, "VISUAL CK UNIT/INMATES ALL QRU." At 9:15 a.m. on December 21, 1999, another correctional officer discovered that inmate Carlos Nevis in room 552, which is in the unit for which Respondent was responsible, had hanged himself to death. The question in this case is whether Mr. Nevis hanged himself on Respondent's watch. If so, given the close proximity of the hanging body to the door window through which an officer makes a visual inspection of the cell, the inference readily follows that Respondent did not conduct a visual check of Mr. Nevis's cell, as Respondent indicated he had done on the Visual Checks log. When the body of Mr. Nevis was found, it was already displaying the effects of rigor mortis. The one witness who had indicated otherwise retreated from his earlier statement and, visibly uncomfortable, testified only that he could not recall if the body felt stiff or hard. Four other witnesses testified that the body was stiff to the touch when it was discovered. The time of death is contested by two expert witnesses. Petitioner relies on the Chief Medical Examiner for Miami-Dade County. He conducted an autopsy and found substantially digested food in Mr. Nevis's stomach. The food appeared to be a green vegetable and red beans, as well as a tan fluid of less than one cup in volume. The food was from dinner on the evening of December 20, not the 1:00 a.m. breakfast on December 21, which had no vegetables. Considering the witness reports of body stiffness, Petitioner's expert concluded that Mr. Nevis died not much after 4:00 a.m.--and well prior to 6:00 a.m.--on December 21. The expert also noted that the fire rescue squad declared Mr. Nevis dead at 9:22 a.m.--two minutes after they arrived at the scene-- and the absence of any indication of chest compressions, bagging, or ventilation is consistent with the finding that Mr. Nevis had been dead several hours by the time his body was discovered at 9:15 a.m. Respondent's expert has served as the regional medical examiner, Deputy Chief Medical Examiner, and Medical Examiner for Dade County since 1972 and is now a forensic pathologist consultant. However, Respondent's expert could not adequately account for the partially digested food found in Mr. Nevis's stomach. Respondent's expert tried to explain that emotional stress would slow digestion, but Petitioner's expert countered convincingly that many persons who have decided to end their lives find peace in their final hours--a premise that would be consistent with the fact that Mr. Nevis had the presence of mind to prepare a final note to his girlfriend and tuck a Bible into his waistband prior to hanging himself. Even Respondent's expert had trouble establishing a time of death considerably past 6:00 a.m. Called as a witness in his own case, Respondent testified that he started the 6:00 a.m. check at 5:45 a.m., and a visual check of the entire 48-room unit takes ten to fifteen minutes to complete. Respondent thus testified that he saw Mr. Nevis alive a few minutes before 6:00 a.m. Petitioner has proved by clear and convincing evidence that Respondent falsely noted in the Visual Checks log that he had checked Mr. Nevis's room at 6:00 a.m., or even 5:45 a.m. Despite his testimony to the contrary at the hearing, Respondent never checked the room at the round that he claimed to have performed at, or shortly before, 6:00 a.m. on December 21.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's certificate. DONE AND ENTERED this 23rd day of April, 2003, in Tallahassee, Leon County, Florida. ___ ROBERT E. MEALE 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 23rd day of April, 2003. COPIES FURNISHED: Rod Caswell, Program Director Department of Law Enforcement Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey Slesnick & Casey 10680 Northwest 25th Street, Suite 202 Miami, Florida 33172-2108
