Findings Of Fact The Respondent Eric Runge holds an inactive correctional officer certificate bearing number 502-2839. On January 9, 1983, the Respondent Runge was employed as a correctional officer at the Hendry Correctional Institute. On that date, the Respondent and four other officers were involved in the movement of a prisoner, Raymond Russell Ford, from one confinement area to another. Prior to the transfer, a supervisor, Lt. McNaughton, met with the officers involved in the transfer and explained to them that he wanted to see the inmate hurt. The officers, including the Respondent, went to the inmate's cell and found him asleep. Ford was awakened by one of the officers and handcuffs and leg irons were secured to his hands and feet. During the transfer, the inmate was placed on the ground several times, here he was struck and kicked by three of the officers. The Respondent was approximately 20 feet in front of the inmate when this occurred. The Respondent and another officer helped the inmate to his feet and turned him over to Sergeants Thompson and DeSilvestri. The inmate was tripped repeatedly by the two officers. This was visible to the Respondent since he was approximately 15 feet behind the inmate and escorting officers. At no time did the inmate fight with the officers or physically resist when they tripped and hit him. When the inmate arrived at his assigned cell, the Respondent and Officer Wilkerson contacted Betty White, a medical technician, in order to alert her of possible injuries to the inmate. Ford's injuries were not serious and consisted of multiple abrasions and scrapes to the face, legs and arms. When this incident came to the attention of prison authorities, all the officers involved were requested to give statements under oath concerning the transfer of the inmate. The Respondent was aware that he was required by Department of Corrections rules to truthfully answer inquiries made by the prison inspector. However, the Respondent admitted violating Department rules by falsifying his report to the prison inspector by denying that excessive force was used during the transfer of the inmate. This false report was made as part of an unsuccessful attempt by the officers involved to cover up the incident. As a result of this incident, several officers lost their jobs at Hendry and the Respondent's effectiveness as a correctional officer has been seriously reduced due to his role in the transfer and subsequent cover up. The involved officers are labeled as "dirty employees" which limits their ability to effectively discharge their duties inside the prison.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner suspending the certificate of the Respondent Eric C. Runge for three months. DONE and ENTERED this 22nd day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32301 Janet E. Ferris, Esquire General Counsel Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Eric C. Runge 1643 North Flossmore Road Fort Myers, Florida 33907 Robert R. Dempsey, Executive Director, Dept. of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. DOAH CASE NO. 83-2302 CJSTC CASE NO. CORO18-0274 ERIC C. RUNGE Certificate Number: 502-2839 Respondent. /
Findings Of Fact At all times material hereto, Respondent, Brenda Barnett, was employed as a detention deputy by the Pinellas County Sheriff's Office, and deemed to be a classified employee. Respondent was initially hired in 1991, and worked as a steward in the jail kitchen facilities before becoming a detention deputy. Respondent is a state-certified sworn correctional officer and, in her capacity as a deputy detention officer, is charged with exercising direction, dominion, and control over incarcerated inmates. Prior to her employment as a detention deputy and as a condition thereto, Respondent received extensive training. Such training includes nearly 500 hours of academy training sanctioned by the Criminal Justice Standards and Training Commission. Also, once employed, the Pinellas County Sheriff's Office provides detention deputies with in-service training and forty hours of formal training annually. Respondent received such additional training through in- service while employed as a detention deputy. In March 1995, Respondent Barnett began a casual relationship with an inmate, Nelson Alas. Inmate Alas was incarcerated at the same facility where Respondent Barnett worked. At first, Respondent exchanged pleasantries such as "hello" or "good bye" with Inmate Alas. Inmate Alas would compliment Respondent. Within days, Inmate Alas attempted to pass a note to Respondent Barnett. Initially, Respondent refused to accept the notes. However, within ten days, Respondent accepted a note from Inmate Alas and soon began writing letters to Inmate Alas. Between the period, March 1995 and April 1995, Respondent wrote at least twenty-one letters to Inmate Alas. During this time Inmate Alas also wrote letters to Respondent. At one point Inmate Alas gave Respondent a photograph of himself. The letters written by Respondent to Inmate Alas were romantic in nature, and many of them spoke of her feelings for and attraction to Inmate Alas. Respondent has never denied and has, in fact, admitted writing these letters to Inmate Alas. Respondent further admitted that on one occasion during her involvement with Inmate Alas, she kissed him. Respondent's actions came to the attention of Detention Deputy David Howsare when an inmate told him that there was communication between Respondent and Inmate Alas, including the exchange of notes and allegations of physical contact. Detention Deputy Howsare reported this through his chain of command, and a search of Inmate Alas' cell was conducted. The search uncovered letters that had been written to Inmate Alas. At about the same time the complaint was made to Detention Deputy Howsare, a complaint regarding Respondent was called in to the PCSO Inspection Bureau. The complaint was made by Cynthia Hadley, who identified herself as the girlfriend of Inmate Alas. Ms. Hadley indicated that her boyfriend, Inmate Alas, was having an affair with a detention deputy and had written several letters to the detention deputy. The matter was referred to the Administrative Investigation Unit and Sgt. Daniel Buckingham and Sgt. Robert Kidd were assigned to investigate the complaint. During the investigation, Sgt. Buckingham sought to ascertain the identity of the person who wrote the letters that were found in Inmate Alas' cell. In this regard, Sgt. Buckingham had the letters sent out for processing for latent fingerprints. After this analysis revealed only the fingerprints of Inmate Alas, Respondent was required to provide a handwriting exemplar. The handwriting exemplar was sent to the Florida Department of Law Enforcement for analysis. The result confirmed that Respondent was the author of at least fifteen of the letters. Also, as part of the investigation, interviews were conducted with Inmate Alas, Ms. Hadley, and Respondent. The interview with Inmate Alas' was unsuccessful in that he was evasive, refused to answer many questions, and was generally uncooperative. During her interview with Sgt. Kidd and Sgt. Buckingham, Respondent admitted improper contact with Inmate Alas, including writing letters to him and receiving a photograph of him. Upon completion of the investigation, the investigatory file was given to Respondent's Chain-of-Command Board for review. Based on its review, the Chain-of-Command Board unanimously found that Respondent had violated rules and regulations of the PCSO relating to loyalty, association with prisoners, and knowledge of and obedience to rules and regulations. As a detention deputy, Respondent's actions of fraternizing with an inmate compromised her position and may have lead to the erosion of security. Also, such undue familiarity has the potential for jeopardizing the security of the institution and the safety of the public as well as that of Respondent's own family. Under the PCSO General Orders B-15 and C-1, as amended in February 1994, the disciplinary point calculation for Respondent Barnett was seventy-five points. The range of discipline for seventy-five (75) points is from a 10- day suspension to termination. The Chain-of-Command voted unanimously to recommend termination. Sheriff Rice concurred with the recommendation and terminated Respondent on June 20, 1995. Throughout the investigation and hearing, Respondent has admitted that she engaged in the conduct which is the subject of the termination notice. Respondent explained that her involvement with Inmate Alas occurred during a time that she was experiencing marital problems. In Respondent's opinion, these problems were exacerbated when she found a diary belonging to her husband in which he stated that he no longer loved her. According to Respondent, due to these problems, she was extremely vulnerable at that time. However, Respondent indicated that after the incidents which are the subject of this proceeding, she and her husband went to counseling and, presently, their marriage is strong. Prior to this case, Respondent has not been investigated or disciplined by the PCSO.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Sheriff's Civil Service Board enter a Final Order finding Respondent, Brenda Barnett, guilty of conduct unbecoming a public servant; violating PCSO Rules C-1, V, A, (002) and (011) and Rule C-1, V, C, (063); and upholding Respondent's termination from employment as a deputy detention officer with the Pinellas County Sheriff's Office. DONE and ENTERED this 31st day of July, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 31st day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0019 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1-4. Accepted. 5-22. Accepted and incorporated to the extent not subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1-2. Accepted. 3-6. Accepted and incorporated. 7-8. Accepted but subordinate to result reached. 9-11. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Accepted but subordinate to result reached. 14-20. Rejected as conclusions of law and/or legal arguments. COPIES FURNISHED: Lawrence A. Jacobs, Esquire Feathersound Place 2727 Ulmerton Road, Suite 2 Clearwater, Florida 34622 James M. Craig, Esquire ALLEY AND ALLEY/FORD AND HARRISON 205 Brush Street Post Office Box 1427 Tampa, Florida 33601 B. Norris Rickey, Esquire Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 Copies furnished continued: Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 34649-2500 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 34617
Findings Of Fact Petitioners and Respondent have stipulated to the following facts: The three petitioners are inmates at Union Correctional Institution, Raiford, Florida, in the custody of the Department of Corrections. All three of the petitioners have had their PPRD's established by the respondent-commission as follows: In June of 1982, Mr. Piccirillo's PPRD was established by the commission to be September 30, 1986. In January of 1982, Mr. Adams' PPRD was established by the commission to be November 11, 1991. In December of 1982, petitioner Hemming's PPRD was established by the commission to be September 29, 1993. Subsequent to the commission having established their PPRD's, all three of the petitioners have been transferred from one Florida penal institution to another state institution as follows: Mr. Piccirillo was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1982. Mr. Adams was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1932. Mr. Hemming was transferred from Avon Park Correctional Institution to Union Correctional Institution on February 16, 1983. The petitioners were not transferred to Union Correctional Institution because of any unsatisfactory institutional conduct at their former institutions. Petitioners are currently scheduled by the commission for biennial interviews to review their established PPRD's as follows: Mr. Piccirillo is scheduled for a biennial interview in March of 1984. Mr. Adams is scheduled for a biennial interview in October of 1983. Mr. Hemming is scheduled for a biennial interview in September of 1984. The following additional findings are made from evidence presented at the hearing: The respondent-commission has not made a finding that any of the petitioner's institutional conduct has been unsatisfactory under the challenged rule nor has respondent extended their PPRD's or refused to authorize their EPRD's. In applying the challenged rule, the fact that an inmate has been transferred to a higher custody or higher level institution is only considered to be unsatisfactory institutional conduct where the commission receives documentation evidencing institutional misconduct as the basis for the transfer. Petitioners transfers from other institutions to Union Correctional Institution would not be considered unsatisfactory institutional conduct under the challenged rule because there is no documentation of institutional misconduct which led to these institutional transfers.
Findings Of Fact Petitioner, Jean Colden (Colder), was employed full time by Respondent, Department of Corrections (Department), as an Accountant II at Broward Correctional Institution. The evidence establishes that Colden was absent without authorized leave on three consecutive workdays, to wit: October 1-3, 1985. At no time did Colden notify the Department of her intention not to appear for work on those dates, and at hearing she offered no explanation for her absences. By certified letter dated October 4, 1985, return receipt requested, Colden was advised that her absence from work since October 1, 1985, was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., she was deemed to have abandoned her position and resigned from the Career Service. The letter further advised Colden of her right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment. Colden timely petitioned the Department of Administration for review On November 5, 1985, he Department of Administration accepted Colden's petition and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing.
The Issue Whether Rules 33ER91-1 and 33ER91-2, Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, Donald Eugene Halpin and Richard Edward Jackson, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the emergency rules at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing the rights of inmates, the operation and management of correctional institutions, classification of inmates and all other aspects of the operation of the prison system in Florida. Chapter 33-6, Florida Administrative Code. Chapter 33-6, Florida Administrative Code, governs, among other things, the classification of inmates. Rule 33-6.009, Florida Administrative Code, governs the classification of inmates for purposes of determining the type of custody an inmate should be subjected to. Pursuant to Rule 33-6.009(3), Florida Administrative Code, inmates may be classified in one of five custody classifications: minimum, medium-out, medium-in, close or maximum. History of Changes in Custody Grade Classification of Inmates Since 1990. In June of 1990, Donald D. Dillbeck, an inmate of the Respondent, was classified and placed in a minimum custody classification, which is the least restrictive custody classification. While outside of the institution in which he was housed and while working at a vocational center, Dillbeck escaped from custody of the Respondent and murdered a woman in the parking lot of a shopping center in Tallahassee, Florida. In response to this murder, then Governor Bob Martinez issued an executive order ordering that all medium or minimum custody classifications of capital-life felons be revoked and that all capital-life felons be classified as close custody, the second most restrictive custody classification. Governor Martinez's executive order was followed by the promulgation by the Respondent of Rule 33ER90-4, Florida Administrative Code, amending Rule 33-6.009, Florida Administrative Code. Effective January 23, 1991, the Respondent promulgated Rule 33ER91-1, Florida Administrative Code, amending Rule 33-6.009, Florida Administrative Code. Effective April 23, 1991, at approximately the same time that Rule 33ER91-1 expired, the Respondent promulgated Rule 33ER91-2, Florida Administrative Code, amending Rule 33-6.009, Florida Administrative Code. Rule 33-6.009, Florida Administrative Code, Prior to the First 1991 Emergency Rule. Rule 33-6.009, Florida Administrative Code, prior to its amendment by Rule 33ER91-1, and other subsequent amendments, contained the following general provisions, pertinent to this proceeding: Section (3) contained provisions concerning the manner in which custody grades of inmates were determined; Section (4) contained provisions placing restrictions on the placement of certain inmates into the community; and Section (5) contained provisions placing restrictions on the assignments that certain inmates could be given. In general, Rule 33-6.009(3), Florida Administrative Code, provided the following: Five classes of custody were established. Rule 33-6.009(3)(a), Florida Administrative Code; An initial questionnaire and reclassification questionnaires were required to be completed for all inmates. Rule 33-6.009(3)(b), Florida Administrative Code; Inmates were awarded a numerical score as a result of the completion of the initial and reclassification questionnaires. Each inmate's custody classification was initially determined based upon this numerical score. For example, an inmate with an initial score of six or more and an inmate with a reclassification score of eight or more was classified as close custody. Rule 33-6.009(3)(c), Florida Administrative Code; If an inmate's numerical score was below the score for close custody and the inmate was not within thirty-six months of release, the inmate's custody classification had to be raised to close custody if any of a number of factors referred to as a "custody checklist" applied to the inmate. For example, an inmate serving a sentence for first or second degree murder had to be classified as close custody even if that inmate's questionnaire score was below six points (on an initial questionnaire) or below eight points (on a reclassification questionnaire). Rule 33-6.009(3)(d), Florida Administrative Code; Additionally, an inmate had to be classified as close custody even if the inmate's score was below six or eight points until the minimum mandatory portion, if any, of the inmate's sentence was satisfied or the inmate was within thirty-six months of release, if the inmate was serving time for certain specified offenses. Rule 33-6.009(3)(d)4, Florida Administrative Code; An inmate's custody grade questionnaire score could also be modified upward based upon consideration of other factors specified in Rule 33- 6.009(3)(d)5, Florida Administrative Code, such as whether the inmate's primary offense had been reduced as a result of a plea bargain. Custody grade scores could be modified downward based upon the same factors but only if the custody checklist was met. Rule 33-6.009(3)(d)5, Florida Administrative Code; Finally, all custody assignments had to be reviewed and approved by the superintendent or his designee. Rule 33-6.009(3)(d)6, Florida Administrative Code. Rule 33-6.009(4), Florida Administrative Code, prohibited the placement of an inmate on work release or other community contract bed if the inmate met any of a number of specified factors, including conviction of 1st or 2nd degree murder (unless the inmate had completed the mandatory portion of the inmate's sentence and was within twelve months of release). Rule 33-6.009(5), Florida Administrative Code, prohibited inmates from being assigned to a road prison, vocational center, forestry camp or to a work camp not adjacent to a major institution if the inmate met any of a number of specified factors, including conviction of 1st or 2nd degree murder. Rule 33ER91-1, Florida Administrative Code. Rule 33ER91-1, Florida Administrative Code, amended the substance of Rule 33-6.009(3), (4) and (5), Florida Administrative Code. Rule 33ER91-1 did not amend the five classes of custody established in Rule 33-6.009(3)(a), Florida Administrative Code. Rule 33ER91-1 did not amend the requirement that initial and reclassification questionnaires be completed for all inmates contained in Rule 33-6.009(3)(b), Florida Administrative Code. Rule 33ER91-1 did not amend the manner in which inmates are awarded a numerical score as a result of the completion of the initial and reclassification questionnaires. Each inmate's custody classification is still initially determined based upon this numerical score. Rule 33-6.009(3)(c), Florida Administrative Code. Rule 33ER91-1 did amend Rule 33-6.009(3)(d), Florida Administrative Code, by eliminating the requirement that the custody classification of an inmate with a grade below the score for close custody had to be raised if any of the factors on the "custody checklist" applied to the inmate. Therefore, for example, an inmate serving a sentence for first or second degree murder is not automatically classified as close custody even if that inmate's questionnaire score is below the six points (on an initial questionnaire) or below eight points (on a reclassification questionnaire). Rule 33ER91-1 also amended Rule 33-6.009(3)(d), Florida Administrative Code, by eliminating the requirement that an inmate be classified as close custody even if the inmate's score was below six or eight points until the minimum mandatory portion, if any, of the inmate's sentence was satisfied or the inmate was within thirty-six months of release based upon the specified offenses formerly contained in Rule 33-6.009(3)(d)4, Florida Administrative Code. Rule 33ER91-1, also amended Rule 33-6.009(3)(d)5, Florida Administrative Code. In essence, the amendment to Rule 33-6.009(3)(d)5, Florida Administrative Code, requires that the Respondent consider a number of factors to either increase or decrease an inmate's custody grade questionnaire score. Generally, all of the factors which the Respondent was required to consider under Rule 33-6.009(3)(d), Florida Administrative Code, and all of the factors which required close custody under Rule 33-6.009(3)(d), Florida Administrative Code, must only be considered by the Respondent under the emergency rule. Rule 33ER91-1, eliminated the requirement contained in Rule 33- 6.009(3)(d)6, Florida Administrative Code, that all custody assignments be reviewed and approved by the superintendent or his designee. The superintendent of a prison is now required under the emergency rule to review and approve all modifications to the custody classification resulting from an inmate's questionnaire. Rule 33ER91-1 repealed Rule 33-6.009(4), Florida Administrative Code, and its prohibition on the placement of an inmate on work release or other community contract bed if the inmate met any of the factors specified in this portion of the rule. Finally, Rule 33ER91-1 repealed Rule 33-6.009(5), Florida Administrative Code, and its prohibition on inmates being assigned to a road prison, vocational center, forestry camp or to a work camp not adjacent to a major institution if the inmate met any of the factors specified in this portion of the rule. The weight of the evidence failed to prove that the requirements of Rule 33ER91-1, Florida Administrative Code, are arbitrary or capricious. Rule 33ER91-2, Florida Administrative Code. Rule 33ER91-2, Florida Administrative Code, is for all practical purposes identical to Rule 33ER91-1, Florida Administrative Code. Rule 33ER91-2, Florida Administrative Code, was declared invalid in a Final Order entered on October 1, 1991, in Darryl James McGlamry v. Department of Corrections, Division of Administrative Hearings Case No. 91-2804R.
The Issue The issues are whether Respondent discriminated against Petitioner based on a perceived disability and retaliated against her in violation of Section 760.10, Florida Statutes.
Findings Of Fact At all times material hereto, Petitioner was employed by Respondent at the Liberty Correctional Institution (LCI). She was hired as a Correctional Officer in LCI's Security Department effective December 21, 1990. In February 1991, Petitioner was counseled regarding her failure to report for duty or to notify the institution of an intended absence. On April 1, 1996, Petitioner's supervisor counseled her regarding her failure to report to work in a timely manner. Petitioner had been tardy to work three times in March 1996. On May 30, 2001, Respondent counseled Petitioner regarding her excessive absenteeism. Petitioner had five unscheduled absences. Respondent promoted Petitioner to Correctional Officer Sergeant effective November 1, 2001. In October 24, 2003, Respondent gave Petitioner an oral reprimand for abuse of sick leave. Petitioner had developed a pattern of absenteeism in conjunction with her regular days off. In December 2004, Respondent gave Petitioner a written reprimand. The reprimand was based on Petitioner's failure to follow oral and/or written instruction, continued absenteeism, and abuse of sick leave. On July 7, 2007, Petitioner sustained an on-the-job injury. The injury was diagnosed as carpel tunnel syndrome. Petitioner underwent surgery for this condition in December 2007. On or about April 8, 2008, Petitioner reached statutory Maximum Medical Improvement (MMI). Petitioner had a Permanent Impairment Rating (PIR) of six percent. On April 15, 2008, a functional capacity evaluation revealed that Petitioner was able to perform light work with lifting restrictions. The restrictions prevented Petitioner from performing the essential functions of a Correctional Officer. Pursuant to policy, Respondent immediately conducted a job search. At that time, a Clerk Typist Specialist position was available at LCI. Petitioner was qualified to perform that job. She submitted an application for the position on or about June 5, 2008. In a letter dated June 10, 2008, Respondent offered Petitioner the Clerk Typist Specialist position in LCI's Classification Department. On June 26, 2008, Petitioner signed an Acknowledgement, accepting a voluntary demotion from Correctional Officer Sergeant to Clerk Typist Specialist and stating that she agreed to perform the duties of the new position to the best of her ability. Petitioner returned the Acknowledgement to Respondent. At the same time, Petitioner questioned whether she would be able to perform the duties of a Clerk Typist Specialist due to her carpel tunnel condition. In a letter dated June 27, 2008, Respondent requested that Petitioner take an essential functions form to a July 8, 2008, doctor's appointment. Respondent wanted the physician to complete the essential functions form and return it to Respondent by July 18, 2008. The purpose of the evaluation was to determine whether Petitioner was able to perform as a Clerk Typist Specialist. On or about July 24, 2008, Petitioner advised Respondent that she was going to have a nerve conduction test on July 30, 2008. She advised Respondent that she would provide the results to Respondent as soon as possible. In a letter dated August 20, 2008, Respondent advised Petitioner that, pending the results of a pre-determination conference, Petitioner could be dismissed from her employment as a Correctional Officer effective September 11, 2008. Respondent proposed this action because Petitioner had not provided Respondent with a doctor's report regarding Petitioner's ability to perform the essential functions of a Clerk Typist Specialist. A pre-determination conference was held on August 27, 2008. In a letter dated September 12, 2008, Warden Douglas advised Petitioner that she would not be dismissed because she had provided medical documentation of her ability to perform the position of a Clerk Typist Specialist. Petitioner began working in that capacity on September 19, 2008. In December 2008, Petitioner sent an e-mail to Respondent's Secretary, Walt McNeil. In the e-mail, Petitioner complained that Respondent had not returned her to work as a Correctional Officer Sergeant after being medically cleared to work in that capacity. There is no persuasive evidence that Petitioner had been medically released to work as a Correctional Officer in December 2008. Additionally, there is no evidence that Petitioner had made a request or filed an application to return to work as a Correctional Officer at that time. Respondent subsequently requested Petitioner's doctor to provide an updated opinion regarding Petitioner's ability to work as a Correctional Officer. On or about January 15, 2009, Petitioner's doctor approved Petitioner's return to work as a Correctional Officer with no restrictions. In a memorandum dated February 9, 2009, Respondent advised Petitioner that she was medically cleared to work as a Correctional Officer but that she would need to apply for openings. The memorandum stated that Petitioner had to be reprocessed as a Correctional Officer, including having a drug test and physical examination. The February 9, 2009, memorandum also reminded Petitioner that she would be required to serve another probationary period if she received an appointment as a Correctional Officer. There is no promotion track between the Security Department and the Classification Department. Petitioner applied for four Correctional Officer positions between February and May 2009. Two of the applications were for positions located at LCI. The third application was for a position at Calhoun Correctional Institution (CCI). The fourth application was for a position at Franklin Correctional Institution (FCI). On February 10, 2009, Warden Chris Douglas at LCI declined to interview or rehire Petitioner as a Correctional Officer for position number 7002037. Warden Douglas made this decision based on Petitioner's previous and current employment history showing attendance problems. Petitioner's testimony that she never applied for this position is not persuasive. Petitioner's application for a Correctional Officer position at FCI was never completely processed. In a letter dated April 9, 2009, Respondent advised Petitioner that she needed to provide additional information to support her application for employment in position number 70039564 at FCI. Petitioner did not respond to the request because she decided that she did not want to commute to work so far from her home. On April 23, 2009, Petitioner received her Performance Planning and Evaluation. Her direct supervisor, Kim Davis, Respondent's Classification Sentence Specialist, rated Petitioner as performing "Above Expectation" in all applicable categories. On April 30, 2009, Petitioner requested Warden Douglas to let her complete her mandatory firearm training because her weapons qualification was about to expire. Warden Douglas promptly responded that she could be scheduled to take the next firearms class. Petitioner re-qualified with specified weapons on May 11, 2009. On May 28, 2009, Petitioner was interviewed for a position as a Correctional Officer at LCI. She gave correct and appropriate answers to all questions during the interview. Even so, Warden Douglas decided not to hire Petitioner due to her past and current attendance problems. Warden Adro Johnson did not give Petitioner an interview for Correctional Officer position number 70041507 at CCI. He made his decision in July 2009 based on information indicating that Petitioner was already employed at LCI. In July 2009, Respondent's supervisor counseled Petitioner regarding her attendance. She had been absent for four unscheduled absences in the past 90 days. She had missed approximately 40 work days or eight weeks of work during the 11 months she was in the position of Clerk Typist specialist. On August 3, 2009, Petitioner filed her initial complaint with FCHR. Ms. Davis was the person who trained Petitioner as a Clerk Typist Specialist. Petitioner's job included filing documents related to approval or disapproval of inmate visitation. The original documents were sent to the inmates. Respondent was supposed to file copies of the documents in the inmates' classification files. During the time that Petitioner worked as a Clerk Typist Specialist, Ms. Davis had to counsel Petitioner approximately ten times regarding the filing of the inmate visitation documents. Ms. Davis stressed the importance of Petitioner completing her work and filing the documents in a timely manner. Additionally, Ms. Davis noted that Petitioner occasionally failed to properly file the documents. Petitioner was trained to remove duplicate copies of documents from inmate files. Duplicate copies of documents could be shredded. Petitioner was not instructed to shred the inmate visitation documents. If the documents were not legible, another copy was supposed to be made, using the copy machine to darken the print. Willie Brown is one of the Assistant Wardens at LCI. His office was close to Petitioner's work area. Assistant Warden Brown occasionally counseled Petitioner regarding the need to file the papers on her desk. On August 18, 2009, Assistant Warden Brown observed a large amount of paperwork that Petitioner had not filed. Once again, Assistant Warden Brown told Petitioner that she needed to file on a timely basis. He explained that Petitioner could file on the schedule she developed, but that it might be necessary to file everyday. Later on August 18, 2009, Heather Barfield, a Correctional Sentence Specialist, observed Petitioner feeding a large amount of paper into a shredder, causing the shredder to jam. Ms. Barfield subsequently attempted to clear the shredder jam and noticed that the papers belonged in the inmates' files. Ms. Barfield reported her observations to Assistant Warden Brown and Cynthia Swier, the Classification Supervisor. Assistant Warden Brown confirmed that the partially shredded documents were legible and should have been filed. Ms. Davis was informed about the shredding incident when she returned to work the following day. Ms. Davis verified that the shredded documents had been legible and were not duplicates of documents in the inmates' files. The greater weight of the evidence indicates that Petitioner intentionally shredded the documents in order to clear her desk. Petitioner's testimony that she was shredding them because they were not legible is not credible and contrary to more persuasive evidence. On August 26, 2009, Respondent terminated Petitioner employment as a Clerk Typist Specialist. Because she was on probationary status, she had no appeal rights.
Recommendation Based on the foregoing Findings of Fact 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 11th day of May, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2010. COPIES FURNISHED: Gertrude Berrieum 5032 Martin Luther King Road Bristol, Florida 32321 Todd Evan Studley, Esquire 2601 Blair Stone Road Tallahassee, Florida 32399 Walter A. McNeil, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Kathleen Von Hoene, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399
The Issue Whether the Department of Corrections' alleged policy of forbidding phone calls between incarcerated husbands and wives, when the wives are incarcerated at Broward Women's Correctional Institution ("BWCI"), is an unpromulgated rule and therefore invalid.
Findings Of Fact Based on the evidence presented, the following facts are determined: The parties stipulate that petitioner has standing to maintain this proceeding i.e. that he is substantially affected by the challenged agency policy. Petitioner is currently incarcerated at Union Correctional Institution; his wife is incarcerated at Broward Women's Correctional Institution (BWCI). Both institutions are part of the state prison system operated by the Department. In August 1983, petitioner asked for permission to telephone his wife at BWCI, but his request was denied by Department officials. Under a BWCI policy, as well as a Department policy, inmates at other institutions are not normally allowed to place telephone calls to inmates at BWCI. The departmental policy is embraced by Rule 33-3.125(1)(e) , which provides: (e) Inmates may not receive incoming telephone calls because it is disruptive to normal operating and program functions of an institution. This rule effectively prohibits inmates from placing calls to inmates at other correctional institutions. Petitioner has not shown that the Department's denial of permission was dictated by any written statement or policy other than that contained in this Department rule.
The Issue Whether Rules 33-3.0084(1)(i)1 and 33-3.005(4)(a) and (b), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, William Van Poyck and Mike Ramadanovic, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the rules at issue in this proceeding. The rules at issue in this proceeding govern the treatment of inmates while in "disciplinary confinement." At the time of the formal hearing, neither of the Petitioners were in disciplinary confinement. Both Petitioners have, however, been in disciplinary confinement. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing the rights of inmates, inmate conduct, inmate discipline and all other aspects of the operation of the prison system in Florida. C. Rules 33-3.005(4)(a) and (b), and 33-3.0084(1)(i)1, Florida Administrative Code. The Petitioners have challenged Rules 33-3.005(4)(a) and (b), and 33- 3.0084(1)(i)1, Florida Administrative Code (hereinafter referred to collectively as the "Challenged Rules"). Rule 33-3.005(4)(a) and (b), Florida Administrative Code, provides, in pertinent part: (4) . . . . Inmates in disciplinary confinement status shall not be allowed to prepare legal documents and legal mail while in that status except under the following conditions: When there is a time limitation on the filing of legal material with a court and it reasonably appears necessary for the inmate to prepare the same while in confinement status in order to get the same filed within the required time. When the inmate wishes to prepare legal material to file with a court for the purpose of testing the legality of his disciplinary confinement. The specific statutory authority for Rule 33-3.005, Florida Administrative Code, is Sections 20.315, 944.09 and 944.11, Florida Statutes. The law implemented by Rule 33-3.005, Florida Administrative Code, is Sections 944.09 and 944.11, Florida Statutes. Rule 33-3.0084(1)(i)1, Florida Administrative Code, provides, in pertinent part: 1. Legal materials shall be accessible to inmates in disciplinary confinement provided such use of legal material is for the purpose of challenging such confinement or in the event there are time restrictions on filing court papers. The specific statutory authority for Rule 33-3.0084, Florida Administrative Code, is Section 944.09, Florida Statutes. The law implemented by, Rule 33-3.0084, Florida Administrative Code, is Sections 20.315 and 944.09, Florida Statutes. Chapter 33-22, Florida Administrative Code, titled "Inmate Discipline", specifies what constitutes prohibited conduct for inmates, the procedures for determining if an inmate has violated the rules establishing prohibited conduct and the maximum punishment which may be imposed if an inmate violates the rules establishing prohibited conduct. The "Rules of Prohibited Conduct" and the maximum punishment for an infraction of these rules are contained in Rule 33-22.012, Florida Administrative Code. Among other things, an inmate who violates the Rules of Prohibited Conduct, may be placed in "disciplinary confinement" for specified periods of time. The length of time an inmate may be placed in disciplinary confinement for is not to exceed 60 days for any one infraction. "Disciplinary confinement" is defined in Rule 33-22.002(3), Florida Administrative Code, as: (3) Disciplinary Confinement -- Confinement which includes the loss of privileges normally afforded other inmates and is effected only after procedures outlined in this chapter have been fully complied with. Although the maximum term of disciplinary confinement is 60 days, it is possible for an inmate to be placed in disciplinary confinement for longer periods of time: (1) an inmate may be convicted of more than one violation of the Rules of Prohibited Conduct and be sentenced to multiple 60-day (or less) sentences to be served consecutively; (2) an inmate may commit another infraction(s) (including a violation of the Challenged Rules) while in disciplinary confinement, resulting in additional disciplinary consecutive confinement sentences; and (3) an inmate may commit an infraction soon after release from disciplinary confinement and be returned to disciplinary confinement. It is also possible for an inmate to serve less than the full term of his sentence to disciplinary confinement. Being placed in disciplinary confinement is a direct result of the actions of an inmate in failing to follow the established rules of conduct of the Respondent. At least one inmate has been in disciplinary confinement for periods of up to two and one-half years. An inmate would have to commit a minimum of fifteen infractions to be sentenced to disciplinary confinement for two and one- half years. The evidence failed to prove that the one inmate that has been in disciplinary confinement for two and one-half years was in disciplinary confinement continuously without any break. The inmate could not recall. The number of inmates in disciplinary confinement for more than one year was not proven. At best, it was proved by the Petitioners that one inmate (Charles William Bowe, Jr.) has served more than one year in disciplinary confinement. Even the evidence concerning Mr. Bowe, however, did not prove that his time in disciplinary confinement was continuous and without any break. Based upon an estimate of the Respondent, it is likely that no more than 1% of the inmate population (less than 460) is in disciplinary confinement for more than one year. Although the evidence did not prove that any inmate has actually been in disciplinary confinement for more than two and one-half years, it is not impossible that an inmate could be in disciplinary confinement for an unlimited period of time, as long as the inmate continues to commit violations of the Respondent's Rules of Prohibited Conduct. Although it may be unlikely, it is not impossible for an inmate to be in disciplinary confinement for the entire term of his sentence. The purpose for placing an inmate in disciplinary confinement and the purpose of the Challenged Rules is to attempt to correct an inmate's demonstrated negative behavior; to eliminate "privileges" inmates normally are given. Pursuant to Rule 33-3.005(4)(a) and (b), Florida Administrative Code, an inmate who is placed in disciplinary confinement is prohibited from instituting any new litigation (other than a challenge to the decision to place the inmate in disciplinary confinement or litigation which must be instituted within a specified time period) while the inmate is in disciplinary confinement. Pursuant to Rule 33-3.005(4)(a) and (b), Florida Administrative Code, an inmate who is placed in disciplinary confinement is generally prohibited from preparing legal documents and legal mail unless the inmate is required to meet a time limitation in an existing legal matter or the inmate intends to test the legality of his disciplinary confinement. When an inmate is placed in disciplinary confinement, all of the inmate's legal materials are confiscated and impounded. Access to an inmate's legal materials may be obtained while in disciplinary confinement pursuant to the exceptions of the Challenged Rules. At Florida State Prison, access is allowed to an inmate' legal materials if the inmate can show the necessity for those materials through: (1) a court order that requires the inmate to take some action in a pending matter; (2) any other source, i.e., a rule of the court, indicating that the inmate must meet some procedural or other requirement of the court; or (3) if the inmate indicates a desire to prepare a challenge to the legality of his disciplinary confinement. The procedure followed at Florida State Prison for an inmate in disciplinary confinement to obtain access to the inmate's legal materials is as follows: The inmate makes a request to an institutional counselor assigned responsibility for the inmate; The inmate must indicate to the institutional counselor why one of the exceptions provided in the Challenged Rules allowing access to his legal materials applies; If the institutional counselor is convinced that one of the exceptions applies, access to the inmate's legal materials is allowed. If not, no access is allowed; The procedure followed at Florida State Prison if an inmate convinces an institutional counselor that access to his legal materials should be allowed is as follows: The institutional counselor retrieves the inmate's legal materials and brings them to the inmate's cell; In some instances the institutional counselor may give the legal materials to the inmate or require the inmate to describe to the counselor, and convince the counselor of, what materials he actually needs to meet the deadline or to challenge his disciplinary confinement; and The institutional counselor, based upon the inmate's description of the materials he needs, makes the final determination of what materials may actually be given to the inmate. If the inmate does not get the materials he needs, he then must convince the counselor of what additional materials are needed. If an inmate is denied access to his legal materials or is not provided with the materials he needs, the inmate may challenge the decision of the institutional counselor by filing a grievance. Based upon the experiences of the inmates who testified in this proceeding, requests for access to an inmate's legal materials may be granted or denied, and when granted, an inmate may be given the whole file, he may be denied materials, he may be asked "is this it" and he may get only the materials he actually needs. Institutional counselors may even make more than one attempt to find the requested materials. Pursuant to Rule 33-3.0084(1)(i)1, Florida Administrative Code, an inmate may not have access to any legal materials except to the extent necessary for the inmate to meet a time limitation in an existing legal matter or if the inmate intends to test the legality of his disciplinary confinement. Access to legal materials in the library may generally be obtained by inmates. Such access is not, however, without limitation. There are limitations on the procedure which must be followed to obtain access to the library and the amount of materials which may be obtained at any one time. An inmate in disciplinary confinement is further limited as to when and how he may access library resources pursuant to the Challenged Rules. At Florida State Prison, access is allowed to library legal materials only if an inmate can show the necessity for those materials in the same manner an inmate may obtain access to his own legal materials as explained in finding of fact 26. The procedure followed at Florida State Prison for an inmate in disciplinary confinement to obtain access to library legal materials is as follows: The inmate must make a request in writing to the librarian; The inmate must indicate to the librarian why one of the exceptions to the lack of access to library legal materials applies; If the librarian is convinced that one of the exceptions applies, access to the library's legal materials is allowed. If not, no access is allowed; The librarian, based upon the inmate's description of the materials he needs, makes the final determination of what materials may actually be given to the inmate. If the inmate does not get the materials he needs, he may make additional requests. If an inmate is denied access to library legal materials or is not provided with the materials he needs, the inmate may challenge the decision by filing a grievance. Institutional counselors and librarians are not required to have legal education or training. The evidence failed to prove that any inmate has been totally denied access to the courts by the proper application of the Challenged Rules. The evidence proved that the Challenged Rules are inconvenient and aggravating to some inmates who have experienced the procedures which must be followed in order to obtain access to the inmate's legal materials or library legal materials. The procedures can be a hinderance to an inmate's pursuit of litigation to the extent that the procedures are one more step an inmate must follow that the inmate would not otherwise have to follow if he were not in disciplinary confinement. The evidence proved that, although inconvenient, some of the inmates who testified were able to pursue litigation even though they have been in disciplinary confinement at times. There was some aggravation and frustration caused those inmates who testified because of the Challenged Rules, but the evidence failed to prove that any of the inmates who testified or any other inmates were actually prevented from pursing litigation: Inmate Bowe, who has served two and one-half years of disciplinary confinement (although it was not proved whether the time was without interruption because of Inmate Bowe's memory lapse), had several court proceedings (Florida and federal) pending at the time of the formal hearing and did not indicate that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the Challenged Rules; Leonard Bean, another inmate who testified, has served 140 to 150 days in disciplinary confinement for multiple infractions. Although Inmate Bean testified that his co-defendant's conviction had been reversed (in February, 1991), the evidence failed to prove that Inmate Bean's conviction would have also been reversed but for his disciplinary confinement or, more importantly, would have also been reversed but for the Challenged Rules. Although Inmate Bean was released from disciplinary confinement in May, 1991, he still had not filed for habeas corpus as of the date of the formal hearing; Jimmy Stephens, another inmate who testified, has served 240 days of disciplinary confinement for four infractions during the past two years. Although inconvenienced by the limitation on library legal material use, Inmate Stephens did not indicate that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue; Carl Watts, another inmate who testified, served 180 days in disciplinary confinement prior to being transferred to Florida State Prison and another 60 days after arriving at Florida State Prison. Inmate Watts' testimony concerning a possible habeas corpus action failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue; Petitioner Ramadanovic has served up to 100 days in disciplinary confinement. Although he filed two grievances dated August 22, 1990, concerning his efforts to file a brief in an appellate court proceeding, his disciplinary confinement ended August 23, 1990, and therefore, he failed to prove that he was prevented from filing a brief or any other pleading in any case pending while he was in disciplinary confinement. The evidence also failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue; Petitioner Van Poyck failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue. As long as an inmate is in disciplinary confinement, that inmate may not file an action for federal habeas corpus. An inmate in disciplinary confinement may also not file an action for habeas corpus in the State courts until some, unspecified date, which the Respondent determines is close enough to necessitate preparation of the pleadings in order to meet the time limitations on habeas corpus in Florida.
The Issue The issue in this case is whether Petitioner should be terminated from employment with Respondent.
Findings Of Fact At all times material to this case, Mr. Davis was employed by the Sheriff's Office as a deputy sheriff. He had been employed by the Sheriff's Office for 11 years. On July 26, 2010, Mr. Davis was assigned to work a post in the healthcare facility of the Pinellas County jail, beginning at 7:00 a.m. This facility houses inmates who have medical problems. The inmates are placed in pods, and the pods are monitored by using direct supervision, meaning a deputy is stationed inside the pod with the inmates and is able to directly monitor and interact with the inmates. Additionally, the deputy supervising the inmates is able to summon medical assistance within the building for the inmates. On July 26, 2010, Inmate Kyle Howard (Mr. Howard) was housed in the pod that Mr. Davis was supervising. On that same day, Mr. Howard came to Mr. Davis and told Mr. Davis that he was ill. Sometime during the day, two inmates came to Mr. Davis and told him that Mr. Howard was sick and throwing up a lot. Standing about 30 feet away from Mr. Howard, Mr. Davis witnessed Mr. Howard "over the toilet in a vomiting mode." Around 9:00 a.m. on July 26, 2010, the nurse, who gave medications to the inmates, gave Mr. Howard a suppository for the nausea. Sometime between 3:08 p.m. and 3:47 p.m., an inmate came to Mr. Davis and told him that Mr. Howard was not responsive. Mr. Davis went to Mr. Howard's cell, discovered that Mr. Howard was not responsive, and called for emergency medical assistance. Mr. Howard was taken to the hospital, where he was pronounced dead. One of the responsibilities of Mr. Davis was to interact with inmates to determine what problems may exist and to summon medical assistance if necessary. On July 26, 2010, Mr. Davis did not attempt to speak to Mr. Howard to determine what was wrong with him and did not call for medical assistance until Mr. Howard was found unresponsive. Mr. Davis was required to check on the inmates in the pod every 30 minutes to monitor the wellness and security of the inmates in the pod. Mr. Davis is required to check each cell and inmate during these checks. After each 30-minute check, Mr. Davis is required to record on a Daily Log Report that he performed the check. The Daily Log Reports are part of the official records of the Sheriff's Office. Mr. Davis admitted that he did not make a complete check every 30 minutes as he was required to do. He walked part of the way down the hall and observed some but not all the inmates. He entered in the Daily Log Report that he had made the checks as required. During some of Mr. Davis's shift on July 26, 2010, Mr. Davis was playing Hearts on the computer and was checking Yahoo and MSN. Prior to the incident at issue, Mr. Davis had been disciplined two times for inappropriate use of computers while on duty. Mr. Davis has admitted that he committed the violations that are charged, but contends that he should be suspended rather than terminated from his employment. The Sheriff Office's General Order 10-2 sets forth the guidelines to be used in the application of discipline. The range of penalties is based on the severity of the violation, from Level One, which is the least severe, to Level Five, which is the most severe. Failing to monitor Mr. Howard and to call for medical assistance for Mr. Howard are severe violations and are Level Five violations. Failing to accurately record his 30-minute checks, because he was not checking each of the inmates during his rounds, is also a severe violation and is a Level Five violation. General Order 10-2 provides that two Level Five violations are assigned 60 points. The disciplinary range for 60 points is a seven-day suspension to termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Mr. Davis's employment with the Sheriff's Office. DONE AND ENTERED this 16th day of May, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2011. COPIES FURNISHED: Sherwood S. Coleman, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 Jimmie Davis 2086 Pine Ridge Drive Clearwater, Florida 33763 James L. Bennett, County Attorney Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756
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
