*Commissioner rejects finding that Captain Grant made a material false or misleading statement and she dismisses all charges against her.

Transcription

1 Dep't of Correction v. Jackson OATH Index Nos. 2927/10, 2929/10*, 2930/10**, & 2931/10** (Apr. 7, 2011) Dep t of Correction v. Grant, OATH Index No. 2929/10 (Apr. 7, 2011), rejected, Comm r Dec. (Nov. 22, 2011), appended, ** aff d sub nom Matos v. Schriro, 2013 NY Slip Op , _A.D.3d_ (1st Dep t 2013) Petitioner proved that Captain Jackson failed to supervise an officer; Officer Matos used impermissible force and submitted a false report; Officer Stevens copied a report; and all four respondents made false or misleading statements during MEO 16 interviews. Remaining charges not proved. Penalties of 30, 20, 60, and 30 days suspension recommended for Captain Jackson, Captain Grant, Officer Matos, and Officer Stevens, respectively. *Commissioner rejects finding that Captain Grant made a material false or misleading statement and she dismisses all charges against her. In a post Report and Recommendation settlement, respondent Jackson agreed to forfeit 30 vacation days. See last page. ** First Department affirms 60 day suspension imposed on respondent Matos and 30 day suspension imposed on respondent Stevens. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF CORRECTION Petitioner - against - DARREN JACKSON, ANDOURE GRANT, JOANNE MATOS, AND CONSTANCE STEVENS Respondents REPORT AND RECOMMENDATION KEVIN F. CASEY, Administrative Law Judge Petitioner brought this disciplinary proceeding under section 75 of the Civil Service Law and alleged that: Captain Darren Jackson and Correction Officer Joanne Matos used impermissible force, submitted false or misleading reports about their use of force, and made

2 - 2 - false or misleading statements during Mayoral Executive Order No. 16 (MEO 16) interviews; Captain Jackson improperly supervised an officer; and Captain Andoure Grant and Correction Officer Constance Stevens copied their reports from each other and made false or misleading statements during MEO 16 interviews (ALJ Ex. 1). At a five-day hearing, petitioner relied upon testimony from five inmates and two investigators, surveillance video, recordings of MEO 16 interviews, and documentary evidence. Respondents testified, presented three other witnesses, and introduced documentary evidence. After receipt of post-argument submissions, the record was closed. The record was re-opened for a site visit conducted on March 2, For the reasons below, petitioner failed to prove that Captain Jackson used unjustified force. However, the evidence showed that Captain Jackson improperly allowed an officer to drag an inmate across a floor, Officer Matos impermissibly kicked the inmate, Officer Stevens copied her report from Captain Grant, and all the respondents made false or misleading statements in their reports or at their MEO 16 interviews. ANALYSIS Background The charges stem from an altercation between Department personnel and inmate Todd Bailey in housing area 7B of the George R. Vierno Correctional Facility on August 10, An assistant deputy warden, two captains, and six officers admitted using force. The parties disagreed about what caused the dispute and the force used. Petitioner alleged that Assistant Deputy Warden (ADW) Edwin Diaz provoked a fight with Mr. Bailey, Captain Jackson and Officer Matos used unjustified force, and all the respondents engaged in a cover-up. Respondents claimed that the incident began with Mr. Bailey s refusal to return a Department-issued razor. He reacted violently after an officer sprayed him with a chemical agent. In the ensuing struggle, ADW Diaz hit Mr. Bailey in the face with a radio. Captain Jackson claimed that he intervened and used his helmet to hit Mr. Bailey in self-defense. Officer Matos denied using force. All of the respondents insisted that their reports and MEO 16 statements were truthful.

3 - 3 - The evidence tended to show that the initial use of force may have been justified and Captain Jackson used his helmet in self-defense. However, the evidence also showed that Department personnel, including Officer Matos, used excessive force after Mr. Bailey was restrained and all of the respondents made false or misleading statements. Uncontested facts Between the inmates and Department personnel, more than thirty people claimed to see some or all of the incident. The following facts were undisputed, generally agreed upon by witnesses for both sides, or established by video evidence. On the morning of the incident, officers searched Mr. Bailey s cell and seized an unauthorized pair of boots (Bailey: Tr. 148; Diaz: Tr. 665). Later that morning, Mr. Bailey failed to return a razor and he told Captain Grant that he wanted to speak to ADW Diaz (Bailey: Tr. 150; Infraction Hearing, Aug. 13, 2007; Grant: Tr. 715). There was no video of the housing area. Surveillance video of an adjacent hallway and vestibule showed ADW Diaz entering the housing area at 9:32:39 a.m. with Officers Matos, Sloly, and Williams. ADW Diaz approached Mr. Bailey, who was holding the razor and, at the ADW s request, Officer Sloly sprayed Mr. Bailey with a chemical agent (Bailey: Tr. 151; Diaz: Tr. 658). At 9:33:00 a.m., a probe team, consisting of Captain Jackson and Officers Lowndes and Nieves, entered the housing area. All three wore protective vests and helmets, the officers carried batons. Less than two minutes later, a similarly equipped response team, consisting of Captain O Hara and Officers Villette, DeSouza, Migliori, and Taylor entered the housing area. Deputy Warden William Diaz and Officer Lee, who had no protective gear or batons, also arrived (Pet. Ex. 14, Camera 16: 9:33:41-9:34:34). At 9:34:59, Officer Williams, suffering from the effects of a chemical agent, staggered out of the housing area. Ten seconds later, an officer escorted ADW Diaz, who seemed injured, from the housing area to the medical clinic. Two and one-half minutes later, Officer Lowndes and another officer dragged Mr. Bailey through the doorway from the housing area to the vestibule. They placed Mr. Bailey, handcuffed behind his back, face down on the floor. A gurney arrived, and officers took Mr. Bailey to an intake unit for decontamination from the chemical agent (Pet. Ex. 14, Camera 16: 9:37:03).

4 - 4 - Mr. Bailey sustained significant injuries and received treatment at the medical clinic. He complained of chest pain, headaches, and visual impairment (Pet. Ex. 15). Mr. Bailey s skull was swollen in several areas. He received eight stitches on his nose, and sustained an eyebrow laceration, abrasions to the head, shoulder swelling, swelling and tenderness of his left leg, and cuts on his wrists (Pet. Ex. 12, Aug. 10, 2007, progress notes; Pet. Ex. 27). A few days later, there was blood in his right eye (Pet. Ex. 12, Aug. 12, 2007, progress notes). An x-ray of his lung was normal and an x-ray of his skull revealed no evidence of a fracture, but there appeared to be two punctuate high density foreign bodies in the right frontal bone (Pet. Ex. 12, Aug. 13, 2007, radiology reports). One week after the incident, his eyes were still swollen and his right eyelid was closed (Pet. Ex. 12, Aug. 17, 2007, progress notes). Photographs showed that Mr. Bailey had two black eyes and cuts on his wrists as well as cuts on the front, top, and back of his head (Pet. Exs. 1, 7, 26). ADW Diaz was taken to a hospital for facial abrasions (Pet. Ex. 27). He injured his hand, lower back, and ribs; Officer Sloly sustained a head injury; Officer Lee injured his shoulder, elbow, and hip; and Officer Williams reported an injury to his left arm and exposure to the chemical agent (Pet. Exs. 13, 27). Captain Jackson did not report any injuries on the day of the incident, but he testified that he had scratches to his hand and, a few days later, he had a lot of back pain (Tr. 882; Pet. Ex. 13). Evidentiary Issues After petitioner elicited that it brought charges against other personnel, petitioner offered evidence that those employees accepted penalties in satisfaction of the charges (Tr ). Petitioner argued that respondents opened the door to the evidence by challenging the adequacy of the Department s investigation and acceptance of such penalties corroborated the inmates version of events (Tr ). This evidence was precluded (Tr ). Employees settle charges for a variety of reasons. Some have prior disciplinary records, others may be risk-averse, and others may be facing compelling evidence. Here, for example, Officer Taylor admitted that he discussed the incident with other officers prior to preparing a report (Pet. Ex. 21a at 19). If he accepted a penalty for improperly colluding with others, that would shed little if any light on the charges against respondents. Such evidence would also lead to protracted mini-hearings where the

5 - 5 - parties would explore other officers reasons for accepting penalties. See Dep t of Buildings v. Almodovar, OATH Index No. 833/91 at 3-4 (July 18, 1991), aff'd, NYC Civ. Serv. Comm'n Item No. CD (Jan. 31, 1992) (evidence with little or no relevance may be precluded to avoid undue delay or issue confusion); see also 48 RCNY 1-46(b) (2010) (authorizing limits on testimonial or documentary evidence). Each side asked for an adverse inference based on the other side s failure to produce evidence. Respondents protested that petitioner had failed to provide a checklist of investigation documents and an intake log, showing inmate movement on the day of the incident. Respondents argued that such evidence could establish that some inmate-witnesses may have had access to Mr. Bailey after he was removed from the area and they could have exchanged information (Tr ). Petitioner said that the accountability checklist was never completed and a search had failed to locate the intake log, which was possibly destroyed by flooding (Tr ). I declined to draw an inference against petitioner for the failure to produce either document. There was no evidence of bad faith. Nor was there evidence that either lost or missing document would have been favorable to respondents. Petitioner asked for an adverse inference to be drawn due to respondents failure to call Officer Sloly and other correction officers as witnesses (Tr ). There was no basis for such an inference. The witnesses work for petitioner and are not within respondents control. Moreover, petitioner introduced the reports and MEO 16 interviews for all the Department personnel who were present during the altercation. Respondents did not need to call those witnesses to repeat or contradict their statements. See Dep t of Correction v. Angrum OATH Index Nos /04, /04, /04 at (Feb. 7, 2005) (declining to draw an adverse inference against respondents for failure to call correction officers as witnesses regarding use of force). The Initial Use of Force by ADW Diaz and Officer Sloly Petitioner argued that ADW Diaz entered the housing area knowing that Mr. Bailey was going to get tuned up (Tr. 961). In contrast, ADW Diaz claimed that he used force only after Mr. Bailey refused to surrender the razor and began to swing it in a threatening manner (ADW

6 - 6 - Diaz: Tr. 660, 705). Petitioner did not charge ADW Diaz with misconduct, but review of his use of force will help determine whether respondents made false or misleading statements. At the hearing Mr. Bailey testified that he took the razor with him from the shower area to his cell, at the opposite end of the housing area, for a quick glance at a mirror to make sure that he was properly groomed (Tr. 151, 178). According to Mr. Bailey, ADW Diaz never told him to drop the razor or said a word to him before ordering Officer Sloly to use the chemical agent (Tr. 151, 156, ). Four other inmates testified and more than a dozen signed written statements, but they did not know how the incident began. Apparently, they did not pay attention until the fighting began (Brooks: Tr. 34; Murray: Tr. 96; Garrett: Tr. (1a) 7; Santana: Tr. (1a) 89). At least one inmate testified that officers argued with Mr. Bailey (Brooks: Tr ). This undercut Mr. Bailey s claim that officers used force without saying anything. Petitioner failed to prove that ADW Diaz went in the housing area to tune up Mr. Bailey. Many inmates were out of their cells that morning and Mr. Bailey is a big person. He is 6 1 and weighed 270 pounds (Tr. 165). Even if ADW Diaz knew that help was on the way, it was unlikely that he entered the housing area with a few other officers, without protective gear, to pick a fight that could lead to a riot. Mr. Bailey had been in the facility for only a few days and had minimal contact with ADW Diaz. There was some suggestion that he exchanged words with Captain Grant or others about the boots (Bailey: Tr. 166). Even if Mr. Bailey had said something provocative, Department personnel are used to hearing such things. There was no proof that Mr. Bailey had said anything so outrageous to trigger an irrational, violent response. ADW Diaz presented a more plausible explanation. He reported to the scene after receiving a report that Mr. Bailey asked to speak with him and had refused to return a razor. Following Mr. Bailey s refusal to surrender the razor, Officer Sloly sprayed the chemical agent. During the ensuing struggle, the ADW struck Mr. Bailey in the face with a radio and they wrestled to the ground (Diaz: Tr , 705; Pet. Ex. 22). Several facts supported ADW Diaz. He submitted a timely, detailed report and did not minimize his own actions. He candidly admitted that he used unconventional and potentially lethal force by striking Mr. Bailey in the face with a radio.

7 - 7 - Mr. Bailey testified that he held the razor until Officer Sloly sprayed him (Tr , 156, 179). Failure to return a razor is a serious infraction (Brooks Tr. 49). It would make sense for ADW Diaz to tell Mr. Bailey to drop the razor. Thus, the use of force probably began with a refusal to drop the razor, which is more likely than an unprovoked attack by ADW Diaz. Although I credited ADW Diaz s general claim that Mr. Bailey disobeyed an order to drop the razor and reacted violently after Officer Sloly sprayed him with the chemical agent, there were inconsistencies in his testimony. For example, ADW Diaz insisted that he did not sound the alarm or call for a probe team before entering the housing area, but the evidence shows otherwise (Tr. 666, 671). The hallway video showed the probe team headed towards the scene thirty seconds before ADW Diaz entered the housing area (Pet. Ex. 14, Camera 25: 9:32:00; Camera 16: 9:32: 30). There was conflicting evidence about the razor. ADW Diaz, Officer Matos, and Officer Sloly claimed that Mr. Bailey dropped the razor as if to comply and then stepped on it, broke it, and swung the blade in a threatening manner (Diaz: Tr. 658, 671; Matos: Tr. 832; Sloly: Pet. Ex. 13). Officer Williams, Captain Grant, and Officer Stevens never mentioned in their reports that Mr. Bailey dropped or stepped on the razor (Pet. Ex. 13). It is hard to believe that, in the presence of an ADW, a captain, and four officers, Mr. Bailey had time to step on the razor, break it, bend over, and grab the blade. Along with the discrepancies regarding the first alarm, the questionable claim that Mr. Bailey stepped on a razor suggests that Department personnel did not accurately describe what led to the use of force. On balance, however, I credited the key parts of ADW Diaz s testimony. Mr. Bailey, upset about his boots, left the shower with a razor and demanded to speak to ADW Diaz. When ADW Diaz arrived, Mr. Bailey ignored orders to give up the razor and Officer Sloly sprayed him with a chemical agent. Mr. Bailey reacted violently, a struggle ensued, and ADW Diaz hit him with a radio. Captain Jackson s Use of Force Petitioner alleged that Captain Jackson unjustifiably hit Mr. Bailey with a helmet. Captain Jackson claimed that he used the helmet in self-defense when he was on his back and Mr. Bailey was about to hit him with a radio. Because petitioner failed to prove that its theory was more likely, the specification should be dismissed.

8 - 8 - Mr. Bailey testified that Captain Jackson struck him three or four times with a helmet for no reason (Tr. 158). I did not credit that claim. Shortly after the incident, Mr. Bailey never mentioned a helmet or Captain Jackson (Pet. Ex. 8; Infraction Hearing, Aug. 13, 2007). At the hearing, Mr. Bailey conceded that he had filled in memory gaps after speaking with others and reviewing documents. Inmates told him what happened and he learned more details from his sister who knew a correction officer (Tr ). Mr. Bailey reviewed the witnesses statements while defending against criminal charges and he knew those reports, like the back of [his] hand (Tr ). Other inmates testified that Department personnel struck Mr. Bailey with batons and helmets, and continued to hit him after he was handcuffed, but it was unclear from their testimony whether Captain Jackson struck Mr. Bailey after he was handcuffed (Murray: Tr ; Garrett: (Tr.(1a) 6, 7, 42; Brooks: Tr. 34, 41). Mr. Santana testified that officers hit Mr. Bailey while he was handcuffed and one or two of them hit him in the face with their helmets (Tr.(1a) 85, 102). On the day of the incident, he reported that Captain Jackson hit Mr. Bailey in the face with a helmet, but Mr. Santana did not recognize Captain Jackson at the hearing (Pet. Ex. 4; Tr.(1a) 91). Thus, besides Mr. Bailey, three of the other four inmates who testified never said that Captain Jackson used his helmet after the handcuffing. The inmates who provided written statements offered conflicting accounts of how many officers used their helmets and whether Captain Jackson struck Mr. Bailey after he was handcuffed (Pet. Exs. 9, 36, 37). Of the thirteen inmates who signed statements, eight did not report that Captain Jackson hit Mr. Bailey with a helmet after he was handcuffed (Pet. Ex. 9e, Williams; Pet. Ex. 36, Green, Rose, Hughes, Darden, Gitters; Pet. Ex. 37, McLean, Ellis). Five inmates signed reports that Captain Jackson hit Mr. Bailey in the face with a helmet after he had been handcuffed (Pet. Exs. 9a, 9b, 9c, 9e, and 9f; Chatman, Britto, Hunt, Hester, and Jiminez). However, I did not fully credit those statements. Mr. Britto s statement inculpating Captain Jackson was especially suspect. At about 4:00 p.m. on the day of the incident, Mr. Britto signed a statement that he heard a commotion and saw Mr. Bradley, who appeared badly beaten, dragged on the floor (Pet. Ex. 37). Six hours later, Mr. Britto signed a more detailed statement specifying the force used by ADW Diaz, Captain Jackson, and Officer Matos (Pet. Ex. 9c). The evolving description suggests that Mr. Britto s second report was not based on his own observations. Moreover, all of the five inmates who made the most serious allegations against

9 - 9 - Captain Jackson, omitted any reference to Mr. Bailey s resistance. Their one-sided version of events conflicted with Mr. Bailey s testimony that he defended himself by throwing people around, and other inmates who stated that he fought back (Bailey: Tr. 158; Brooks: Tr. 83, 85-86; Pet. Ex. 36; Darden, Gitters, Garrett, Hughes). Unlike some inmates who offered incomplete descriptions, Captain Jackson offered a fuller, balanced explanation. His use of force report acknowledged that he used potentially lethal force when he struck Mr. Bailey in the face with a helmet (Pet. Ex. 13). He made similar admissions at the MEO 16 interview and at this tribunal. Captain Jackson s prompt admission that he used potentially lethal force lent credibility to his testimony. He recalled entering the housing area and seeing Mr. Bailey fighting with ADW Diaz (Tr. 874). When Captain Jackson intervened, Officer Nieves jabbed Mr. Bailey with a baton. Mr. Bailey grabbed the baton and began swinging it wildly, striking ADW Diaz (Tr. 876). Captain Jackson wrestled Mr. Bailey to the ground and Captain Jackson landed on his back (Tr ). Mr. Bailey gained control of the radio and used it to strike Captain Jackson in the faceguard, knocking his helmet off (Tr. 880). In a vulnerable position, Captain Jackson grabbed a helmet and hit Mr. Bailey in the face with it (Tr ). Captain O Hara supported Captain Jackson s testimony. In a detailed use of force report and vivid testimony, Captain O Hara credibly described how he arrived with a response team and saw Mr. Bailey on top of Captain Jackson, who was using a helmet to defend himself (Tr. 615, ). While officers jabbed with their batons, others grabbed Mr. Bailey, Captain O Hara sprayed him with chemical agent, and another officer handcuffed him (Tr ). In their reports and MEO 16 interviews, Officers Nieves, Lowndes, Taylor, DeSouza, and Villette all confirmed that Captain Jackson defended himself against Mr. Bailey (Pet. Ex. 13). The medical evidence was inconclusive. Neither side presented an expert witness to analyze Mr. Bailey s injuries. Petitioner stressed Mr. Bailey s obvious head injuries and emphasized that he looked to be semi-conscious when the officers brought him out of the housing area. Respondents argued that if many officers hit Mr. Bailey with batons and helmets while he was handcuffed, he would have received more injuries. Mr. Bailey s injuries were substantial, but they seem to show that he was hit in the face with a radio, struck in the head with a helmet, and jabbed with batons all of which respondents conceded. The absence of more serious injuries, such as a fracture, appears to confirm that there was a struggle in which

10 Department personnel landed hard blows in self-defense and inconsistent with a one-sided assault described by the inmates. Petitioner argued that the lack of serious injuries to Department personnel, who received various cuts and bruises, proves that they assaulted Mr. Bailey. That is not necessarily so. Members of the response and probe teams receive training, are experienced in dealing with such situations, and wear protective gear. Moreover, this was not a one-on-one fight between Captain Jackson and Mr. Bailey. Officers Nieves and Lowndes, joined shortly afterwards by Officers Villette and Taylor, worked as a team, grabbing Mr. Bailey s arms, legs, and torso (Pet. Ex. 13). In light of the violent attacks on ADW Diaz and Captain Jackson, petitioner expressed disbelief that officers used their batons merely to jab. The failure to use more force is not a reason to sustain the charges. Deadly physical force by the officers was permissible, but not required (O Hara: Tr. 650). If officers had used their batons like baseball bats, there was a risk that they would seriously injure their colleagues. Petitioner correctly noted a discrepancy regarding the helmets. The video shows that Captain Jackson wore a white helmet as he entered the housing area with Officers Lowndes and Nieves, who wore dark helmets (Pet. Ex. 14, Camera 16: 9:33:00). When officers removed Mr. Bailey from the housing area four minutes later, Officer Lowndes was not wearing a helmet (Tr. 902; Pet. Ex. 14, Camera 16: 9:37:03). Captain Jackson followed them out a few seconds later. He was not wearing a helmet and he held a dark helmet in his hand. Officer Matos walked out the housing area with radios and other equipment, including a white helmet with a detached faceguard (Pet. Exs. 30, 31). Neither side offered a convincing explanation of how Captain Jackson ended up with somebody else s helmet. Petitioner suggested that, after Mr. Bailey was handcuffed, Captain Jackson, and perhaps Officer Lowndes, took off their helmets and used them as weapons. That does not make much sense. Captain Jackson is very experienced. He knew that removing his helmet made it easier for inmates to identify him and it exposed himself to a head injury. He also knew that hitting an inmate in the head with a helmet could inflict obvious and serious injury. It is more likely that the helmet came off during a struggle and Captain Jackson only used it in desperation. Even if Captain Jackson gratuitously took off his helmet to bash Mr. Bailey in the head, that fails to explain how the helmets were mixed-up. A mix-up was more likely to occur during

11 a violent struggle than in a one-sided attack. If the helmet came off during the melee and Captain Jackson used it to defend himself, he probably dropped it when the response team intervened. A few minutes later, when he left the housing area, he may have mistakenly grabbed an officer s helmet that also came off during the altercation. Petitioner noted that, during his MEO 16 interview, Officer Lowndes said that Captain Jackson hit Mr. Bailey with a dark helmet. That is a somewhat selective interpretation of the interview. Based on the entire interview, it is unlikely that Officer Lowndes could accurately recall the helmet s color. He repeatedly described the incident as a rapidly unfolding event and he offered few specifics. If he could credibly recall the helmet color, then his entire MEO 16 statement, including statements that Captain Jackson acted in self-defense and no officer used unjustified force, should be credited. Despite my concerns about Captain Jackson s testimony, I credited his claim that he came to ADW Diaz s aid and hit Mr. Bailey with a helmet in self-defense. It is possible that Captain Jackson also hit Mr. Bailey with the helmet in retaliation after he was handcuffed, but petitioner offered conflicting evidence on this point and failed to prove it by a preponderance of the evidence. Similarly, evidence that others struck Mr. Bailey after he was handcuffed is not proof that Captain Jackson used excessive force. This specification should be dismissed. Captain Jackson s Supervision of Staff Captain Jackson was also charged with failure to supervise staff. Petitioner alleged that Captain Jackson failed to insure that Mr. Bailey was provided with a gurney to leave the housing area and further alleged that Captain Jackson allowed Officer Lowndes to drag Mr. Bailey on the floor of the housing area (ALJ Ex. 1). Petitioner presented evidence from several inmates who saw Department personnel drag Mr. Bailey out of the housing area (Bailey: Tr. 159, 203; Garrett: Tr.(1a) 11, 77; Murray: Tr. 97; Hunt: Pet. Ex. 9b; Hughes: Pet. Ex. 36; Britto: Pet. Ex. 37). None of the thirteen written reports submitted by Department personnel mentioned any dragging. In his report, Captain Jackson wrote that while officers attempted to assist Mr. Bailey to his feet, he claimed that he could not walk and a gurney was called for (Pet. Ex. 13). After Mr. Bailey was placed on the gurney, he was wheeled out (Pet. Ex. 13). At the hearing, Captain

12 Jackson testified that Mr. Bailey was walking towards the exit when he dropped to the ground just before the door (Tr. 903). The video, from inside the vestibule, confirms that Officer Lowndes and another officer dragged Mr. Bailey through the doorway. Mr. Bailey was handcuffed behind his back and the two officers pulled him across the floor by the top of his shirt. Captain Jackson stood directly behind Mr. Bailey as the officers dragged him through the doorway (Pet. Ex. 14, Camera 16: 9:37:48). Captain O Hara testified that officers may not drag inmates, but briefly dragging Mr. Bailey through the doorway was necessary to clear the doorway for security (Tr. 621). That explanation was unconvincing. In his use of force report, Captain O Hara wrote that Mr. Bailey was escorted to the doorway for medical treatment and near the doorway, when he said that he could not walk, officers easily placed him on the floor (Pet. Ex. 13). The report makes no mention of dragging or a need to secure the doorway. Furthermore, the housing area door was open during the entire altercation. By the time officers dragged Mr. Bailey out, there were at least twenty officers on the scene and the inmates were locked in their cells (Pet. Ex. 27). There was ample time to help Mr. Bailey to his feet. At least the officers could have picked up his legs and carried him through the doorway rather than drag him along the floor. Captain Jackson testified that Captain O Hara, as response team leader, was in charge of the area (Tr. 883). Even if Captain O Hara was in charge, and responsible for obtaining the gurney, Captain Jackson is a supervisor who had a duty to prevent an unnecessary use of force. He failed to do so. Instead, he stood directly behind two officers as they improperly dragged Mr. Bailey out of the housing area. Because Captain Jackson failed to supervise staff, this specification should be sustained. Officer Matos s Use of Force Twelve inmates reported that Officer Matos kicked Mr. Bailey (Garrett: Tr.(1a) 8; Murray: Tr. 93, 139; Santana: Tr.(1a) 103; Chatman: Pet. Ex. 9a; Hester: Pet. Ex. 9b; Britto: Pet. Ex. 9c; Hunt: Pet. Ex. 9d; Williams: Pet. Ex. 9e; Jiminez: Pet. Ex. 9f; Ellis: Pet. Ex. 28; Rose Pet. Ex. 36; Gitters: Pet. Ex. 36). In her use of force witness report, MEO 16 interview, and testimony, Matos insisted that she never touched Mr. Bailey (Tr. 837; Pet. Exs. 13, 19). Other

13 Department personnel also claimed that they did not see Officer Matos strike Mr. Bailey (Jackson: Tr. 888; O Hara: Tr. 619; Pet. Ex. 13). The inmates credibly described Officer Matos s actions. For example, Mr. Garrett had an unobstructed view from the second tier of the housing area and he clearly saw Officer Matos kick Mr. Bailey (Tr.(1a). 6-8). Mr. Murray identified Officer Matos and said that she kicked Mr. Bailey after he was handcuffed (Tr. 93). Mr. Murray conceded that the officers may have grabbed Mr. Bailey s legs to restrain him and may not have been purposefully holding his legs open for Officer Matos to kick him (Tr. 139). Respondents tried to impeach the inmate-witnesses with their criminal records, memory lapses, and evidence that they discussed the incident with each other. All of that may be true. The inmate-witnesses had lengthy criminal records, the hearing occurred three years after the incident, and the altercation generated much discussion. But the inmates who testified at the hearing did not seem to be making things up. Except for Mr. Bailey, I believe that most of the inmates testified about what they saw. Furthermore, other evidence corroborated the written statements of several inmates. For example, on the day of the incident, Mr. Williams reported the dispute about the boots, the use of a chemical agent, and references to a razor. He also said that Officer Matos kicked Mr. Bailey (Pet. Ex. 9e). Since the testifying inmates and respondents corroborated much of that report, it is likely that Williams s additional claim regarding Officer Matos was true as well. See Dep t of Correction v. Woodson, OATH Index Nos. 597/04 & 603/04, at 7 (July 1, 2004) (crediting hearsay statement of inmate where it is corroborated by other evidence). There was some variation regarding the location of the kicks. One inmate said that Officer Matos kicked Mr. Bailey in the head (Hester: Pet. Ex. 9d); another said the ribs (Ellis: Pet. Ex. 28), and others said the groin or genitals (Murray: Pet. Ex. 3; Santana: Tr.(1a) 108; Williams: Pet. Ex. 9e; Jiminez: Pet. Ex. 9e). Many people were at the scene and the inmates may not have had a perfect view of where the kicks landed, but on the key point Officer Matos kicked Mr. Bailey the evidence was strong. In contrast to the detailed inmate testimony, Officer Matos offered vague denials. Her terse use of force witness report, made no mention of ADW using his radio. Instead, she said that he used body holds (Pet. Ex. 13). And Officer Matos made no mention of Captain

14 Jackson using his helmet. Indeed, she did not mention Captain Jackson by name and simply referred to the probe team (Pet. Ex. 13). At the hearing, Officer Matos claimed that, as soon as Mr. Bailey knocked the chair away, she turned away from the fight and moved other inmates to their cells (Tr. 832, 840). But she glanced back to see Mr. Bailey seize a baton, she saw him wildly resisting, and radioed for additional assistance (Tr. 833, 853, 856, 862). Asked if she saw anyone strike Mr. Bailey, Officer Matos testified, I don t recall (Tr. 854). Pressed about her omission of any use of force by the probe or response teams, Officer Matos replied, I was a rookie officer, so and now I know to get more detailed (Tr. 855). When petitioner s counsel pointed out that Officer Matos had nearly three years of experience at the time of the incident and asked whether she considered herself a rookie, she replied, Of course. I m a rookie today still learning (Tr. 855). Given Officer Matos s sparse report and evasive testimony, her testimony lacked credibility. There was no plausible motive for inmates to single out Officer Matos and falsely accuse her of kicking Mr. Bailey. Many of the inmates identified Captain Grant and Officer Stevens. Yet none of the inmates accused either of them of using force. Indeed, Mr. Brooks noted that Officer Stevens had once issued him a violation for disobeying an order, which resulted in him going to punitive segregation (Tr. 68). That might give him a reason to accuse Officer Stevens of wrongdoing, but he did not do so. Officer Matos suggested that inmates had a grudge against her because she had once informed them that they were ineligible to spend more time with their loved ones on Family Day (Tr. 851). She could not recall when that incident occurred (Tr. 851). The more likely reason for the inmates to accuse Officer Matos is that they were upset that she kicked a fellow inmate when he could not defend himself. Because Officer Matos used unjustified and excessive force, this specification should be sustained. False or Misleading Reports Petitioner alleged that Captain Jackson s use of force report was false or misleading when he related he used his helmet to strike inmate Bailey in self-defense and only as a last option (ALJ Ex. 1). The evidence tended to show that Captain Jackson used his helmet in selfdefense. Thus, petitioner failed to prove that this part of his report was false or misleading. The specification should be dismissed.

15 For Officer Matos, petitioner alleged that her report was false or misleading because she denied using any force (ALJ Ex. 1). Petitioner proved that Officer Matos used force when she kicked Mr. Bailey. The specification should be sustained. Sharing or Copying of Reports by Captain Grant and Officer Stevens Captain Grant and Officer Stevens submitted nearly identical use of force witness reports (Tr. 23). For example, the following 78-word passage appears in both reports: Said inmate then became aggressive and started swinging the razor wildly at DOC staff attempting to cause harm. Officer Sloly then picked up a chair in an attempt to knock the razor from the hand of said inmate. Officer Sloly s attempt was unsuccessful. Officer Sloly then utilized the chair as a shield in an attempt to restrain said inmate to the wall and try to cease his attack and prevent him from inflicting serious physical injury to staff (Pet. Ex. 13). Questioned at their MEO 16 interviews and at the hearing about the reports similarities, Captain Grant and Officer Stevens denied that they had copied from each other (Grant: Tr. 723; Pet. Ex. 23a at 41; Stevens: Tr. 800; Pet. Ex. 18a at 8-10). One of them, and possibly both, lied. It is more likely that Officer Stephens copied Captain Grant s report. When the incident occurred, Captain Grant had seven years experience with the Department and Officer Stevens slightly more than one year s experience (Grant: Tr. 712; Stevens: Tr. 782, 814). Officer Stevens had witnessed use of force incidents, but Captain Grant had seen many more (Grant: Tr. 713; Stevens: Tr. 825). Captain Grant had more experience writing reports; it is unlikely that she would have relied on a novice officer s report. Even if Captain Grant had relied on a subordinate s report, she would not have copied it nearly word for word. The copying was so amateurish that it looked like the work of an inexperienced officer. The most likely explanation for the similarity between the reports is that Officer Stevens had access to Captain Grant s report. Thus, the charge against Officer Stevens should be sustained. The next question is whether Captain Grant knowingly shared her report or Officer Stevens obtained it by some other means. The evidence is unclear. Captain Grant testified that she typed the report in the captain s office that day after working a second tour. She claimed that

16 she dropped the report off in ADW Jackson s mailbox in a control room, where officers had limited or no access, shortly before leaving work at 8:00 p.m. (Tr , , 735, 759). At her MEO 16 interview, Captain Grant said that she was not certain but she believed that she put the report in Captain Williams s mailbox (Pet. Ex. 23a at 8). At the hearing, Captain Grant said that she later realized that she left the report in ADW Jackson s mailbox (Tr. 726). Officer Stevens testified that she did not finish her report until 8:30 or 9:00 p.m. and left work at 11:30 p.m. (Tr. 784, 815). She recalled giving the report to ADW Jackson in her office (Tr. 787). Officer Stevens said that she worked more than seven hours overtime, from 3:30 to 11:00 p.m. preparing her use of force witness report and an infraction report against Mr. Bailey (Tr. 816). Between 5:00 and 6:00 p.m., a fellow officer informed her that ADW Jackson was waiting for the report (Tr. 816). Perhaps Captain Grant gave her report to Officer Stevens or made it available for her. It is also possible that Captain Grant carelessly left the report somewhere where Officer Stevens found it and copied it. It could also be that a colleague obtained Captain Grant s report and gave a copy to Officer Stevens. Petitioner s evidence failed to demonstrate which scenario was more likely. It appears that Captain Grant handed her report in first and Officer Stevens was having some difficulty writing her report. Though it is also odd that Captain Grant made conflicting statements about where she delivered her report, that evidence, without more, is not enough to prove that Captain Grant knowingly shared her report with Officer Stevens. The specification against Captain Grant should be dismissed. False or Misleading Statements at MEO 16 Interviews Petitioner accused all the respondents of making false or misleading statements during their MEO 16 interviews. In determining whether a MEO 16 statement is false or misleading, the issues are whether it is a material statement and whether it demonstrates intentional deception or lack of concern for the truth, rather than inadvertent error. See Dep t of Correction v. Centeno, OATH Index No. 2031/04 at 4 (Mar. 16, 2005). For each respondent, the petition identified one or two specific statements prefaced by the phrase including but not limited to (ALJ Ex. 1). The broadly worded charges put the respondents on notice that the specified remarks were not the only false or misleading statements

17 they were accused of making. See Police Dep t v. Combs, OATH Index Nos. 1073/91, 422/92 at 6 (July 7, 1992), modified on penalty, Comm r Dec. (Oct. 5, 1992), aff d, 210 A.D.2d 12 (1 st Dep t 1994) (allegations that police officers made false statements during interviews deemed sufficient to put them on notice of misconduct alleged). In opening and summation, petitioner stated that respondents made false statements about the events leading to the use of force, the force used, and Mr. Bailey s removal from the housing area (Tr. 11, 13, , 963, 967, 970). The allegations against each respondent are addressed below. Captain Jackson Petitioner failed to prove that Captain Jackson made false or misleading statements regarding his use of his helmet. However, other statements he made during his MEO 16 interview were false or misleading. At the MEO 16 interview, Captain Jackson said that, once Mr. Bailey was handcuffed, all action stopped (Pet. Ex. 23b at 36). He also said that he did not see Officer Matos kick Mr. Bailey (Pet. Ex. 23b at 35). The evidence showed that officers continued to hit Mr. Bailey after he was handcuffed (Murray: Tr. 93; Garrett: Tr.(1a) 6, 7, 42; Santana: Tr.(1a) 85, 102). Thus, the claim that all action stopped was false. Moreover, a dozen inmates saw Officer Matos kick Mr. Bailey. It is more likely than not that Captain Jackson saw that as well. From the moment he entered the housing area, Captain Jackson actively participated in securing and removing Mr. Bailey. Indeed, Captain Jackson was directly behind the officers who dragged Mr. Bailey out of the housing area. It is likely that he saw the improper use of force by others, including Officer Matos. Captain Jackson testified that, at first, he was disoriented and did not see any use of force after Mr. Bailey was handcuffed (Tr. 888, 904). I did not credit that testimony. Captain Jackson seemed alert on the video, making pointed remarks to Mr. Bailey in the vestibule (Pet. Ex. 14, Camera 16: 9:38:03-9:38:27). After watching the video, Captain Jackson testified that he did not know what he said a few years ago, but it was probably, Listen, a gurney s coming. Relax. Calm down (Tr ). It is plain to see that Captain Jackson is not telling Mr. Bailey to calm down. He appears to be angry. That is not surprising. Moments earlier, there was a violent struggle, where Mr. Bailey tried to injure Captain Jackson. However, it is surprising that, despite watching the video, Captain Jackson refused to concede the obvious. His unwillingness to acknowledge what was on

18 the video made me doubt his claim that he did not see others use excessive force off-camera. The specification should be sustained. Captain Grant Petitioner failed to prove that Captain Grant knowingly shared her report with Officer Stevens. However, the evidence showed that at least one other statement that Captain Grant made during her MEO 16 interview was false or misleading. At her MEO 16 interview, Captain Grant said that, after she spoke with Mr. Bailey in the housing area, she went to the A station and called ADW Diaz on the phone and returned inside the housing area when ADW Diaz arrived (Pet. Ex. 23a at 15-16). As the video shows, Captain Grant never left the housing area. The video shows Officer Stevens going from the housing area to the A station at 9:24:08 (Pet. Ex. 14, Camera 16). Three minutes later, Captain Grant went from the hallway to the A station. Captain Grant later followed Officer Stevens from the A station to the housing area (Pet. Ex. 14, Camera 16: 9:29:16). Captain Grant did not leave the housing area before ADW Diaz arrived, nearly four minutes later (Pet. Ex. 14, Camera 16: 9:29:16-9:33:29). Although the evidence shows that Captain Grant made incorrect statements at the MEO 16 interview regarding how or when she called ADW Diaz, it is not clear that this was an intentionally false or material misstatement. On the other hand, Captain Grant did make materially false or misleading statements at the MEO 16 interview when she failed to mention ADW Diaz s use of his radio as a weapon. At the interview, Captain Grant said that she walked ahead of officers and stood near or close behind ADW Diaz when Mr. Bailey became violent and brushed aside the chair held by Officer Sloly (Tr , 36). According to Captain Grant, the probe team arrived and she helped Officer Stevens return other inmates to their cells (Tr. 32). Asked if she saw ADW Diaz doing anything, Captain Grant replied, No. Not that I can recall, I didn t see him (Pet. Ex. 23a at 35). Captain Grant s MEO 16 statement conflicted with ADW Diaz s statement. ADW Diaz told the interviewers that he hit Mr. Bailey with the radio when Mr. Bailey swung at him (Pet. Ex. 22a at 21). ADW Diaz offered similar testimony at the hearing and said that, along with Officer Sloly, he tried to restrain Mr. Bailey (Tr ). Because Captain Grant was only a few feet away and it was a highly volatile situation, it is unlikely that she turned her back on Mr. Bailey as he swung the razor. It is also unlikely that

19 she failed to see ADW Diaz hit Mr. Bailey with a radio. Captain Grant may have helped Officer Stevens return other inmates to their cells and may not have been paying attention when Mr. Bailey was later handcuffed and removed, but her claim that she did not see ADW Diaz do anything was false or misleading. Because her omission was designed to conceal a use of force by a supervisor during a major incident, this was a material and deliberate misstatement. The specification should be sustained. Officer Matos During her MEO 16 interview, Officer Matos denied using any force and specifically denied kicking Mr. Bailey (Pet. Ex. 43, 44, 46). Petitioner proved that Officer Matos kicked Mr. Bailey. For that reason, alone, Officer Matos made false or misleading statements during her MEO 16 interview. At her MEO 16 interview, Officer Matos also said she walked behind as Officer Sloly and ADW Diaz went to the back of the housing area, but she did not mention anybody taking a chair (Pet. Ex. 19a at 15-17). She recalled that, after Mr. Bailey started swinging the blade, Officer Sloly thought fast and picked up a chair (Tr ). Officer Matos suggested that use of the chair followed Mr. Bailey s violent threats. Yet the video shows an officer grabbing a chair near the entrance to the housing area; as the trailing officer, Officer Matos could not have missed it (Pet. Ex. 14; Camera 16: 9:32:46). Her failure to mention that during her MEO 16 interview was material and misleading. During her MEO 16 interview, Officer Matos denied seeing ADW Diaz hit Mr. Bailey with a radio (Pet. Ex. 19a at 31-32). She also denied seeing Captain Jackson use his helmet (Pet. Ex. 19a at 39-40). Officer Matos tried to suggest that she turned away when the probe team arrived and focused on returning inmates to their cells, while occasionally glancing back (Pet. Ex. 19a at 24-25). She happened to see ADW Diaz struggle with Mr. Bailey and grab his upper torso (Pet. Ex. 19a at 26, 28, 30). She also saw Captain Jackson fall after Mr. Bailey pushed him and she saw Mr. Bailey grab a baton (Pet. Ex. 19a at 33-34). It is not credible that Officer Matos was close enough and attentive enough to see all that, but she did not see ADW Diaz defend himself with a radio or Captain Jackson defend himself with a helmet (Pet. Ex. 19a at 27, 31-35, 39-40). Finally, Officer Matos claimed that she did not see what happened to Mr. Bailey after he was handcuffed (Pet. Ex. 19a at 42). During the interview, Officer Matos claimed that she was

20 too busy to notice because she tried to escort ADW Diaz out of the housing area, he sent her back for his radio, she gathered equipment, and went to the clinic (Pet. Ex. 19a at 42-43). Officer Matos tried to create the impression that she was no longer present when officers removed Mr. Bailey from the housing area. At the hearing, petitioner pressed Officer Matos on this point: Q: Did you ever see him dragged out of the housing area? A: They were taking him out of the housing area. Dragged? I don t know. Probably, I don t know. Q: Probable (sic)? A: I m not sure. I wasn t I didn t have my hands on him (Tr. 850). As the video shows, Officer Matos followed closely behind as officers dragged Mr. Bailey out of the housing area (Pet. Ex. 14, Camera 16: 9:37:51). Because Officer Matos had an unobstructed view as officers dragged Mr. Bailey, her MEO 16 claim, that she did not see what happened after he had been handcuffed, was deliberately and materially false or misleading. This specification should be sustained. Officer Stevens During her MEO 16 interview, Officer Stevens denied that she copied or reviewed Captain Grant s report (Pet. Ex. 18a at 9-10). Petitioner proved that Officer Stevens had copied from Captain Grant s report. This, alone, proved that Officer Stevens lied during her MEO 16 interview. Officer Stevens also made an incorrect statement during the MEO 16 interview when she said that Captain Grant left the housing area to contact ADW Diaz (Pet. Ex. 18a at 19). As noted, the video shows that Captain Grant never left the housing area to go to the A station, but it is not clear that this was an intentional or material misstatement. At the MEO 16 interview, Officer Stevens recalled seeing Mr. Bailey knock the chair away when Officer Sloly tried to pin him (Pet. Ex. 18a at 28-29). Officer Stevens testified that she saw Mr. Bailey swinging wildly and ADW Diaz was on the floor when the probe team arrived (Pet. Ex. 19a at 33). If Officer Stevens saw ADW Diaz on the floor, then she probably saw him use his radio as a weapon before he was knocked down. Her failure to mention ADW Diaz s use of force was misleading.

21 This specification should be sustained. FINDINGS AND CONCLUSIONS 1. Petitioner failed to prove that Captain Jackson used impermissible or excessive force, as alleged in DR # 667/08, specification Petitioner proved that Captain Jackson negligently supervised staff, as alleged in DR # 667/08, specification Petitioner failed to prove that Captain Jackson submitted a false or misleading report, as alleged in DR # 667/08, specification Petitioner proved that Captain Jackson made false or misleading statements at an MEO 16 interview, as alleged in DR # 667/08, specification Petitioner proved that Officer Matos used excessive force, as alleged in DR # 672/08, specification Petitioner proved that Officer Matos submitted a false or misleading report, as alleged in DR # 672/08, specification Petitioner proved that Officer Matos made false or misleading statements at an MEO 16 interview, as alleged in DR # 672/08, specification Petitioner proved that Officer Stevens improperly copied a report, as alleged in DR # 673/08, specification Petitioner proved that Officer Stevens made false or misleading statements at an MEO 16 interview, as alleged in DR # 673/08, specification Petitioner failed to prove that Captain Grant copied or shared her report, as alleged in DR # 671/08, specification Petitioner proved that Captain Grant made false and misleading statements at an MEO 16 interview, as alleged in DR # 671/08, specification 2.