Dep’t of Correction v. Reid

OATH Index Nos. 1898/14 & 1901/14 (June 18, 2014), aff’d, NYC Civ. Serv. Comm’n Case

Nos. 2014-1131, 2014-1133 (Jan. 23, 2015), appended

Two correction officers charged with improperly entering punitive

segregation inmate’s cell, using excessive force, failing to report

the force incident, failing to obtain medical attention for the

inmate, and making false reports and statements. Administrative

law judge found proof sufficient to sustain all of the charges and

recommended that officers be suspended for 45 and 30 days.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

OSMOND REID and OSVALDO RIVERA

Respondents

______________________________________________________

REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me in accordance with section 75 of the

Civil Service Law. Petitioner, the Department of Correction, charged that respondents Osmond

Reid and Osvaldo Rivera, correction officers, improperly entered a punitive segregation inmate’s

cell, used excessive force, failed to report the force incident, failed to obtain medical attention for

the inmate, and made false reports and statements.

A hearing on the charges was conducted on May 15 and 16, 2014. Petitioner presented

the testimony of the inmate and two captains, as well as several video surveillance recordings.

Respondents testified on their own behalf, admitting that they entered the inmate’s cell but

denying that any force was used or that they otherwise committed misconduct.

For the reasons provided below, I find that the evidence was sufficient to sustain all of

the charges and recommend that respondent Reid be suspended for 45 days and that respondent

Rivera be suspended for 30 days.

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ANALYSIS

The charges concern an incident which occurred at 3:50 p.m. on December 11, 2011, in

the central punitive segregation unit (CPSU) at the George R. Vierno Center on Riker’s Island.

The punitive segregation inmates, who have all been found guilty of facility infractions, are

locked in their cells for 23 hours per day with only one hour of recreation per day. Housing area

1B within CPSU, where the incident took place, is also a mental health assessment unit for

infracted inmates (MHAUII) where inmates who take medication are under observation for

mental health reasons. The charges against the respondents allege that they, along with one other

officer, entered an inmate’s cell and used force, in violation of a number of CPSU and MHAUII

rules and regulations.

The rules for CPSU and MHAUII units require that inmates be escorted out of their cells

by an officer and “shall be rear cuffed with palms out and thumbs up in accordance with cuffing

policy.” MHAUII Manual at 13, 18. In addition, officers are prohibited from entering MHAUII

cells without supervisory approval and, where force is anticipated, must have the entry into the

cell filmed by a handheld video camera. The manual states that an example of an anticipated use

of force is when an inmate refuses to permit the removal of his handcuffs. MHAUII Manual at

19.

Certain facts, many of them shown by the surveillance video (Pet. Exs. 19, 20) made by

cameras at either end of the 1B corridor, were undisputed. On the date of the incident, during the

3:00 p.m. to 11:00 p.m. tour, respondent Reid was the steady B officer, Officer S. Rivera was the

control room officer, and respondent Rivera and Officer Orlandi1 were assigned to be escort

officers. Captain Fields was the area supervisor. Earlier in the day, there had been complaints

by an inmate named Rutherford about his telephone privileges and he had requested permission

to go to the intake area to resolve this problem. Mr. Rutherford was angry because during the

7:00 a.m. to 3:30 p.m. tour he had not been able to use the phone (Pet. Ex. 4: Rutherford

Interview; Pet. Ex. 14: S. Rivera Mayor’s Executive Order (MEO) 16 Interview). Mr.

1 At the hearing, attorney for petitioner indicated that disciplinary charges were also served on Officer Orlandi and

that he settled with the Department by agreeing to a penalty (Tr. 297-98). Neither party chose to call him as a

witness, although his MEO 16 interview statements were admitted into evidence (Pet. Ex. 12) without objection.

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Rutherford persuaded Officer Orlandi to open his slot supposedly to pass a lotion bottle to

another inmate and then refused to remove his hands from the slot, a practice known as holding

the slot (Pet. Ex. 12: Orlandi MEO 16 Interview). The open slot caused a security breach which

prevented any of the 1B inmates from leaving their cells (Pet. Ex. 4: Rutherford Interview; Reid:

Pet. Ex. 1 at 14; Pet. Ex. 7a; Pet. Ex. 12: Orlandi MEO 16 Interview). In order to induce Mr.

Rutherford to remove his hands from the slot, Officer Orlandi assured Mr. Rutherford he could

go to intake, inducing Mr. Rutherford to place his hands through the slot so that Officer Orlandi

could apply handcuffs at around 3:32 p.m., as shown by the video (Pet. Exs. 19 and 20). Instead

of escorting Mr. Rutherford to intake, Officer Orlandi escorted another inmate out of the area

and left Mr. Rutherford waiting in his cell (Pet. Ex. 12: Orlandi MEO 16 Interview; Pet. Ex. 4:

Rutherford Interview).

It is further undisputed that, at around 3:50 p.m., respondents Reid and Rivera and

Officer Orlandi directed Officer S. Rivera to open the door to Mr. Rutherford’s cell and entered

the cell. On the video (Pet. Exs. 19, 20), first respondent Reid followed closely by Officer

Orlandi and respondent Rivera are shown in front of the cell as the door opens. The three

officers walk quickly into the cell, as the inmate’s leg and foot is shown emerging for a second.

At 3:52 p.m., the officers emerge from the cell, but turn and go back in. A minute later, a black

boot of one of the officers appears for a second at the bottom of the cell door. At 3:54 p.m. all

three officers emerge from the cell and walk back down the corridor.

Captain Fields conducted her first tour of area 1B at approximately 5:15 p.m. (Lewis: Tr.

40; Video: Pet. Ex. 19). At that time, she observed Mr. Rutherford in his cell lying face down

and appearing to be asleep. She saw that Mr. Rutherford was breathing, and moved on (Lewis:

Tr. 28-29).

During the next several hours, the 1B corridor was flooded with water emerging from

most of the inmate’s cells. At approximately 6:30 p.m., Captain Fields returned to 1B pursuant

to a call from the control room that an inmate had pushed a mattress through a slot and that the

area was flooded. There she was told by the inmates that Mr. Rutherford was in his cell injured

(Lewis: Tr. 18, 22). When Captain Fields spoke with Mr. Rutherford, he said that he was injured

and could not stand (Tr. 18). Captain Fields called for medical assistance and for extra escort

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officers (Tr. 20-21). She waited for about 30 minutes for a medical team to arrive and remove

Mr. Rutherford on a stretcher.

According to the clinic records (Pet. Ex. 5), Mr. Rutherford was treated at around 7:55

p.m. While he told the clinic staff that he had been “assaulted” by multiple officers and

complained of nausea, headache, neck pain, the clinic staff found only “superficial laceration of

ribs, right shoulder and left ankle.” Subsequent back X-rays and CAT scans of his head and

neck at Elmhurst Hospital were all negative (Pet. Ex. 5).

The parties offer contradictory accounts of why the officers entered Mr. Rutherford’s cell

and what happened during the four minutes they were inside. According to the testimony of Mr.

Rutherford, after Officer Orlandi promised to take him to intake, he was rear handcuffed, a

requirement for all CPSU inmates taken out of their cells. Some five minutes later, four officers,

including both respondents, opened Mr. Rutherford’s cell door and punched and kicked him in

the face and head and hit his head on the toilet. They “slammed” him from the bed to the floor.

He screamed “sorry” and told them to stop. They asked if he wanted more and then inflicted

more blows and kicks, as Mr. Rutherford lay on the floor and screamed for help (Tr. 215-16).

Mr. Rutherford stated that there was blood on the floor from his head (Tr. 227-28). After an

hour or so, Captain Fields appeared and called for medical help (Tr. 217).

Mr. Rutherford had pain in his neck, back, ribs, wrists, and shoulder and was unable to

talk (Tr. 218). After five hours at Elmhurst Hospital, he was returned to his cell (Tr. 219).

Eight other inmates submitted statements to investigators concerning the incident. Five

inmates asserted that, after the three officers entered Mr. Rutherford’s cell, the inmates heard

sounds suggesting a struggle or an assault (Johnson: Pet. Ex. 2 at 6; Ortiz: Pet. Ex. 15; Singleton:

Resp. Ex. A; Vincente: Resp. Ex. B; Rivera: Pet. Ex. 2 at 9). Five inmates also heard respondent

Reid order Mr. Rutherford to say he was “sorry” (Johnson: Pet. Ex. 2 at 6; Ortiz: Pet. Ex. 15;

Cruz: Pet. Ex. 16; Singleton: Resp. Ex. A; Vincente: Resp. Ex. B). Two inmates stated that they

heard respondent Rivera tell respondent Reid to “stop” (Singleton: Resp. Ex. A; Rivera: Pet. Ex.

2 at 9). Two stated that respondent Reid said to “show me his ribs” (Ortiz: Pet. Ex. 15) or “Let

me get a rib shot” (Vincente: Resp. Ex. B).

Five inmates described Mr. Rutherford as visibly injured when he emerged from the cell:

“swollen” (Cruz: Pet. Ex. 2 at 7; Singleton: Resp. Ex. A), scars on his forehead, side of his face,

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and right eye (Bilal: Pet. Ex. 2 at 7), “a little bloody” (Singleton: Resp. Ex. A), “appeared to have

been beaten with a brick,” with swelling to right temple and scratches on his shoulders

(Vincente: Resp. Ex. B) a cut under his left eye and “a little bit of blood” (Rivera: Pet. Ex. 2 at

9).

In their testimony, as well as in their reports and MEO 16 interviews, respondents

contended that they entered Mr. Rutherford’s cell in order to remove the handcuffs applied by

Officer Orlandi (Reid: Tr. 163-64) and also to counsel the inmate about facility rules. Although

respondent Reid admitted that upon entering the cell they “guided” Mr. Rutherford to the back

(Reid: Tr. 164), both respondents insisted that Mr. Rutherford fully complied with their orders

and denied using force (Reid: Tr. 165; Rivera: Tr. 241-42). Respondents testified that Mr.

Rutherford stood at the back of the cell and lifted his hands so that Officer Orlandi could remove

the handcuffs (Reid: Tr. 168; Rivera: Tr. 245-46). According to respondent Reid, Officer

Orlandi then ordered Mr. Rutherford to turn and face the wall as the officers exited the cell. As

the officers were walking out, Mr. Rutherford turned and began walking towards the door. The

officers re-entered the cell and again ordered Mr. Rutherford to stay on the wall until they exited

the cell. This time Mr. Rutherford remained facing the wall until the officers left the cell (Reid:

Tr. 168-69; Rivera: Tr. 244).

Respondents testified that Mr. Rutherford was handcuffed with his arms in front (Reid:

Tr. 173; Rivera: Tr. 241). Respondent Reid also testified that he notified Captain Fields during

her first tour of the area that the officers entered Mr. Rutherford’s cell and removed his

handcuffs (Tr. 188). In her testimony at the hearing (Tr. 21) and in her MEO 16 interview (Pet.

Ex. 1 at 21), Captain Fields denied being told that the officers entered Mr. Rutherford’s cell.

Both respondents admitted that they were required by the CPSU and MHAUII rules to

notify a supervisor before entering Mr. Rutherford’s cell but did not do so (Reid: Tr. 166-67;

Rivera: Tr. 242, 257). Respondent Rivera acknowledged that removing an inmate’s handcuffs

did not qualify as “extenuating circumstances” so as to justify entering the cell without notifying

the captain (Tr. 257-58). Respondent Reid justified going into Mr. Rutherford’s cell because “it

was a rush decision” and he had entered cells in the past without a problem (Tr. 167).

Mr. Rutherford’s testimony and that of respondents thus offered contradictory versions of

why the officers entered Mr. Rutherford’s cell and what happened inside. Mr. Rutherford’s

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account that the officers, led by respondent Reid, entered his cell to inflict punishment rather

than to remove handcuffs and speak with him about the rules was consistent with his own written

and verbal statements immediately after the incident. In a recorded interview on December 12

(Pet. Ex. 4), Mr. Rutherford provided more detail concerning respondent Reid’s motives and

what went on inside the cell. He asserted that respondent Reid threatened to slap him if he threw

more garbage into the corridor. After this threat, respondent Reid somehow deactivated his

telephone PIN number so Mr. Rutherford could not make telephone calls. Mr. Rutherford

admitted that, earlier in the afternoon on December 11, he blocked the slot on his cell door in

order to protest the refusal to let him go to intake. He stated that, as respondents and Officer

Orlandi opened his cell, he attempted to rush out so he could be seen by the corridor cameras, but

was “pushed back” by the officers. He also stated that respondent Reid “punched” him in the

ribs and that the officers told him to apologize.

Mr. Rutherford’s statements of being repeatedly beaten, kicked, and bloodied were

inconsistent with some of the other evidence. Captain Lewis saw no injuries on Mr. Rutherford

either during her 5:15 tour or as he was being carried out (Tr. 30). The medical records from the

clinic and Elmhurst Hospital showed no serious injuries. In her MEO 16 interview, Officer S.

Rivera stated that Mr. Rutherford told her only that his leg hurt and he needed a stretcher. In Mr.

Rutherford’s testimony, he complained of injuries to his neck, back, ribs, wrists, and shoulder,

but never mentioned any injury to his leg.

There was also considerable evidence that Mr. Rutherford had a financial incentive to

concoct or exaggerate injuries in order to enhance an anticipated civil recovery. This was shown

by the recorded telephone conversations (Resp. Ex. C) between Mr. Rutherford and his mother

about retaining a lawyer the day following the incident, as well as Mr. Rutherford’s

acknowledgement in his hearing testimony that he had a lawsuit pending against the City for the

injuries but did not know the current status of the action (Tr. 236).

Mr. Rutherford’s claim of having been bullied and struck by the officers was

corroborated by some of the evidence. In his written statement (Pet. Ex. 2), Mr. Rutherford

indicated that, while beating him, the officers told him to say he was sorry. Notably, this was

one of the consistent details overheard by five other inmates, who also heard an officer tell

respondent Reid to stop, and respondent Reid say something about Mr. Rutherford’s ribs. The

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fact that the entry into the cell occurred only a few minutes after Mr. Rutherford held his slot

added credence to Mr. Rutherford’s description of respondent Reid angrily demanding that Mr.

Rutherford say he was sorry.

The video showing that Mr. Rutherford tried to exit the cell as respondent Rivera was

rushing inside was consistent with the statement made by Mr. Rutherford to investigators that

when the officers opened the cell door he tried to run out (Pet. Ex. 4). The four minutes that the

three officers spent inside the cell was also more consistent with the prolonged interaction

described by Mr. Rutherford than with the officers’ account that they did nothing but remove

handcuffs and provide advice to a compliant inmate.

Mr. Rutherford’s account of being roughed up and beaten was further corroborated by the

multiple inmate statements indicating that respondent Reid demanded that Mr. Rutherford say he

was sorry, that respondent Reid wanted to see Mr. Rutherford’s rib, that respondent Rivera

ordered respondent Reid to stop, and that Mr. Rutherford screamed and called for help. Because

the inmate statements were taken within a few hours of the incident, when most if not all of the

inmates had been isolated inside their cells since the incident, there was limited opportunity for

them to collaborate upon or concoct so many consistent details.

The 26 photos of Mr. Rutherford (Pet. Ex. 3), taken on the following day by an

investigator, are consistent with Mr. Rutherford having had a recent fight resulting in superficial

scratches or scrapes. The photos show a bruise or red spot behind his left ear (Pet. Ex. 3 at 5b);

6-7 mild bruises or scrapes on his back and shoulders (Pet. Ex. 3 at 5e, 5f, 5g, 5h); a slight bruise

and red spot on his right chest along his rib cage (Pet. Ex. 3 at 5i); a red scrape or burn on his left

ankle (Pet. Ex. 3 at 5k, 5l); red marks on his left wrist (Pet. Ex. 3 at 5n, 5o, 5p); a red mark on his

left arm at the elbow (Pet. Ex. 3 at 5q, 5r); and a light bruise above his right eye (Pet. Ex. 3 at

5s). These marks, while not consistent with the extreme beating described by Mr. Rutherford,

nonetheless suggest that he was involved in a recent scuffle and are consistent with Mr.

Rutherford’s claim of being struck in his ribs, neck, back wrists, and shoulder.

Respondents’ credibility was undermined by a number of factors. Most notably,

respondents’ contention that they used no force on Mr. Rutherford because he fully complied

with all their orders was contradicted by the video and respondents’ own statements. A camera

(Pet. Ex. 20) at the end of the corridor close to Mr. Rutherford’s cell shows that, at 3:50 p.m.

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respondent Reid enters the cell followed immediately by respondent Rivera and Officer Orlandi.

A camera (Pet. Ex. 19) at the other end of the corridor, with a full view of Mr. Rutherford’s cell

door, shows the inmate’s leg appear at the bottom of the cell door just before the officers push

inside. Respondents’ insistence that Mr. Rutherford obeyed their directions to go to the back of

the cell without any of the officers using force was inconsistent with the video showing that Mr.

Rutherford nearly exited the cell just as they entered.

Nor was the officers’ contention that Mr. Rutherford complied with all of their directions

consistent with their professed need to enter the cell at all. If Mr. Rutherford had been fully

cooperative, he would presumably have placed his hands in the slot so that the handcuffs could

be removed, negating the need for any of the officers to enter the cell. Indeed, the contention

that the officers’ purpose in entering the cell was to remove the handcuffs was undermined by

Officer Orlandi in his MEO 16 interview (Pet. Ex. 12). Officer Orlandi stated that, prior to

entering Mr. Rutherford’s cell, he never directed Mr. Rutherford to place his hands in the slot so

that the handcuffs could be removed without anyone going inside. Even as the officers insisted

that no force was used on Mr. Rutherford, they admitted that respondent Reid “guided” Mr.

Rutherford to the back. Respondent Reid admitted this in his testimony, while respondent Rivera

and Officer Orlandi both admitted this in their MEO 16 interviews.

The officers’ account of a non-confrontational encounter with Mr. Rutherford inside his

cell was also inconsistent with the concerted efforts of the 1B inmates to flood the corridor

following the incident and Captain Lewis’s testimony that, when she arrived at the unit for the

second time, several inmates told her Mr. Rutherford was lying in his cell injured. The officers

offered conflicting and unconvincing reasons for two hours of flooding: that it was incited by an

inmate named Ortiz for unspecified motives (Orlandi MEO 16), that it was due to general

complaints about not being permitted to go to services (Reid MEO 16), or that the inmates

resented Mr. Rutherford (Rivera MEO 16). In fact, a more plausible explanation for the flooding

was that the inmates were trying to have a supervisor come to the unit and check on Mr.

Rutherford.

The first charge against both officers alleges that respondents failed to notify a supervisor

or anticipate that force might be used prior to entering Mr. Rutherford’s cell. There is no

question that this charge must be sustained. Respondents themselves acknowledged that CPSU

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rules require that a supervisor be notified before entering an inmate’s cell unless an emergency

exists. The use of force directive provides that “[w]henever the use of force is anticipated and

the inmate does not pose an immediate threat, a supervisor shall be notified.” Directive No.

5006R-C, section IV(C)(1). As noted above, the MHAUII manual expressly states that an

inmate refusing to permit the removal of his handcuffs is an example of an anticipated use of

force. MHAUII Manual at 19. Captain Fields also stated that removing handcuffs and

counseling an inmate are not emergencies that would permit officers to enter a CPSU inmate’s

cell without a supervisor’s approval (Tr. 15-16). Respondents’ entry into Mr. Rutherford’s cell

without supervisory authorization violated the force directive by failing to anticipate a use of

force, as well as the MHUAII manual, requiring supervisory approval and a video record when

officers enter cells where an inmate is refusing to permit removal of handcuffs.

Furthermore, Mr. Rutherford’s testimony and statements, the statements of the other

inmates, and the officers’ own testimony support a finding that the officers entered Mr.

Rutherford’s cell in order to punish him for holding his slot and causing a disruption and to

prevent him from doing so again. The alternate reasons offered by the officers, that of removing

the inmate’s handcuffs or instructing him on facility regulations, were not credible and gave

every indication of being pretexts to mask other motives. As to removing the handcuffs, the

officers indicated that they did not seek to remove Mr. Rutherford’s handcuffs through the slot,

as required by facility rules, a procedure which would have made going inside the cell

unnecessary. They also offered no reason as to why they could not speak with Mr. Rutherford

about the regulations at the cell door, without entering his cell. As pointedly admitted by

respondent Reid, the decision to enter Mr. Rutherford’s cell was a “rush decision” (Tr. 167). The

most plausible motive for such a spontaneous action was, not the reasons offered by respondents,

but annoyance at Mr. Rutherford and a desire to take punitive action.

For all of these reasons, charge 1, alleging that respondents entered Mr. Rutherford’s cell

in violation of the use of force directive and facility rules, must be sustained.

As to charge 2 alleging unnecessary or excessive force, the video evidence supports a

finding that, as they entered Mr. Rutherford’s cell, respondent Reid and perhaps the other

officers used force to push the inmate back away from the door. The force directive provides

that force may be used when necessary “to restrain” inmates or “control the situation.” Directive

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No. 5006R-C, section III. Officers are authorized to use force in order to “enforce

Department/facility rules and court orders.” Directive No. 5006R-C, section IV(A)(4). “Force

may not be used to punish an inmate.” Directive No. 5006R-C, III.

Given the speed with which Mr. Rutherford’s leg emerges from the cell door in the video,

and the comparable speed with which respondent Reid, followed by the other two officers,

charge into the cell, the officers’ statements that respondent Reid did no more than “guide” Mr.

Rutherford was not consistent with the video and not credible. The video makes it apparent that

respondent Reid must have pushed Mr. Rutherford back with some force as the officers entered

the cell. The force used to push Mr. Rutherford back to the wall was shown to be unnecessary in

that the officers had no justification for entering the cell in the first place. In fact, the officers

violated facility rules in entering Mr. Rutherford’s cell without supervisory approval. By their

own admissions, the officers entered Mr. Rutherford’s cell for insufficient reasons and the force

used upon entry violated the force directive.

Using additional force to push Mr. Rutherford backwards was particularly unnecessary

because he was rear-handcuffed, as indicated by the more credible evidence. Mr. Rutherford’s

testimony and Officer Orlandi’s MEO 16 interview (Pet. Ex. 1 at 16) indicated that Mr.

Rutherford was rear-handcuffed, not handcuffed from the front as testified by respondents. In

fact, CPSU rules require that all inmates be rear-handcuffed when being escorted outside their

cells, as Officer Orlandi assured Mr. Rutherford he was about to be.

The issue remains as to whether the officers used additional force on Mr. Rutherford

during the four minutes they remained inside his cell. The evidence on this issue was conflicting

and most of the hearing testimony found to be unreliable. Many of Mr. Rutherford’s specific

allegations of being beaten, kicked, and knocked against the toilet were contradicted by more

credible proof. Although Mr. Rutherford testified that he was bleeding as a result of the alleged

assault, Captain Lewis testified that she saw no bleeding either when she saw Mr. Rutherford at

5:15 p.m. during her first tour or when he was removed from his cell some three hours later.

Captain Lewis also denied seeing any blood on the floor of the cell, as testified to by Mr.

Rutherford. Neither the clinic staff, the hospital staff, nor the investigators who photographed

Mr. Rutherford could identify any visible injuries consistent with an aggressive assault, as

described by Mr. Rutherford. The inmates who provided statements made it clear that they could

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only hear but could not see what happened inside the cell. Mr. Rutherford was shown to have a

compelling motive to exaggerate his injuries in order to enhance a civil recovery of damages in

his pending lawsuit.

Other evidence, however, supported a finding that after going inside the cell the officers

used additional force. First, as found above, the more plausible motive for the officers’ entry

into Mr. Rutherford’s cell was to punish him, a motive consistent with some force being used. I

also found credible the multiple consistent statements from the other inmates that, inside the cell,

one of the officers said “stop” and respondent Reid mentioned Mr. Rutherford’s ribs. This

evidence, when combined with the photos (Pet. Ex. 3) showing multiple marks or bruises on Mr.

Rutherford’s neck, back, ribs, wrist, ankle and shoulder, many of which look as if they were

recent, is sufficient to support a finding that inside the cell the officers used further force, most

likely blows to the inmate’s chest, back, and arms, in punishing him for holding his slot in order

to protest the telephone dispute. While it is not possible to make a finding as to the force each

respondent used upon Mr. Rutherford, under these circumstances, where the proof showed that

force was used and where respondents both admitted that they entered Mr. Rutherford’s cell

together with a joint intention of confronting him about his violation of facility rules, it is

appropriate to find both liable for using force. The evidence shows that the force used upon Mr.

Rutherford inside his cell was intended to punish, not restrain or control, in direct violation of the

force directive.

Specification 2 against both officers should also be sustained.

Charge 3 alleges that respondents failed to provide prompt medical attention to Mr.

Rutherford. Officers who fail to promptly report a use of force have been found in violation of

the force directive by preventing an injured inmate from receiving medical treatment. Dep’t of

Correction v. Stapleton, OATH Index No. 369/13 (Jan. 31, 2013), modified on penalty, Comm’r

Dec. (Mar. 24, 2014); see Directive No. 5006R-C, section V(D) (after being notified of force

being used, supervisor must determine whether inmate is in need of medical attention and, if

needed, ensure that “proper medical attention” is provided). In this case, as discussed above,

there was equivocal evidence to support a finding that Mr. Rutherford was seriously injured. He

was, in fact, given no treatment either at the clinic or at the hospital. Nonetheless, because

respondents were aware that force was used upon Mr. Rutherford and failed to notify a

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supervisor, their actions violated the directive by preventing a captain from making an

assessment of his condition and by delaying Mr. Rutherford’s examination in the clinic until

some four hours after their confrontation with him. Specification 3 must also be sustained.

Specifications 4 and 5 allege that both respondents made numerous false statements in

their reports and in the MEO 16 interviews. In their reports (Pet. Exs. 6, 9), both officers denied

that any force was used on Mr. Rutherford. Neither report mentioned Mr. Rutherford attempting

to exit the cell. The denials in the reports that force was used and also the failure to mention that

Mr. Rutherford attempted to exit his cell and needed to be stopped by the officers were false

statements in violation of the use of force directive requirement that force be promptly and

accurately reported. Directive No. 5006R-C section V(F)(3), as well as of the rule forbidding

submission of false reports. Department rule 4.30.020.

Specification 4 further alleges that respondents failed to include various other details in

their reports and that these omissions rendered the reports false. The omitted details included

leaving the inmate handcuffed in his cell, the inmate refusing to comply with directions to let the

officers remove his handcuffs, the inmate attempting to exit his cell, and the time the officers

remained inside the cell. The use of force directive requires that use of force reports include

“details such as the type and extent of the force used, injuries sustained by inmates or staff, and a

list of all participants.” Directive No. 5006R-C section V(F)(3). The directive further requires

that officers’ use of force reports provide “[a] complete account of the events leading to the use

of force and whether the use of force was anticipated and a supervisor notified prior to the use of

force.” Despite the directive’s mandate of completeness, I do not find that respondents’ failure

to report these incidental details constitutes a false statement or otherwise violates their

obligation to complete the reports. Respondents’ reports, which were inaccurate as to denying

that force was used but provided a narrative with detail as to reasons for entry into Mr.

Rutherford’s cell, satisfied the basic reporting requirement. See Dep’t of Correction v. Adams,

OATH Index No. 1659/95 (Sept. 25, 1995) (report’s lack of detail held not to constitute failure to

report).

Specification 5 alleges that, in their MEO 16 interviews, both respondents falsely stated

that no force was used on Mr. Rutherford and that Mr. Rutherford offered no physical resistance.

The charges further allege that respondent Rivera falsely stated that Mr. Rutherford was “not

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restrained” when he tried to exit the cell as the officers entered. In their interviews (Pet. Exs. 7,

10), both respondents denied that force was used on Mr. Rutherford. In respondent Reid’s

interview, he conceded that Mr. Rutherford attempted to walk out of the cell but stated that

respondent Reid said “no” and pointed to the rear of the cell and Mr. Rutherford immediately

complied. In his interview, respondent Rivera stated that, while no force was used on Mr.

Rutherford, respondent Reid may have “guided” him away from the cell door as the officers

entered. He denied that any of the officers actually “pushed” Mr. Rutherford. In my review of

the summary and the audio of respondent Rivera’s MEO 16 interview (Pet. Ex. 10), I was unable

to find a statement to the effect that Mr. Rutherford was “not restrained” as he tried to exit the

cell.

As discussed above, the evidence here supports a finding that respondent Reid and

perhaps the other officers pushed, rather than guided, Mr. Rutherford toward the back of the cell

and used further force once inside the cell. Respondents’ interview statements denying any use

of force must be found to be false. These false statements were in violation of Department rule

4.30.020 and Directive 5006R-C section V(G). Specification 5 against both respondents must be

sustained.

In sum, all of the specifications should be sustained against both respondents.

FINDINGS AND CONCLUSIONS

1. Specification 1 of DR no. 265/2013 against respondent Reid and of

266/2013 against respondent Rivera must be sustained in that, on

December 11, 2011, respondents entered the cell of a CPSU inmate

without notifying a supervisor in violation of Directive No. 5006R-

C, section IV(B)(1) and IV(C)(1) and MHAUII Manual at 19.

2. Specification 2 of DR no. 265/2013 against respondent Reid and of

266/2013 against respondent Rivera must be sustained in that, on

December 11, 2011, respondents used unnecessary force in

pushing a CPSU inmate to the back of his cell and in striking him

in the chest, back, and arms, in violation of Directive 5006R-C

sections III, IV(B)(1), and IV(C)(1).

- 14-

3. Specification 3 of DR no. 265/2013 against respondent Reid and of

266/2013 against respondent Rivera must be sustained in that

respondents failed to report a use of force and thus prevented an

inmate from receiving prompt medical assistance in violation of

Directive No. 5006R-C, section V(D).

4. Specification 4 of DR no. 265/2013 against respondent Reid and of

266/2013 against respondent Rivera must be sustained in that

respondents submitted use of force reports falsely stating that no

force was used and failing to state that a CPSU inmate tried to exit

the cell as they entered, in violation of Department rule 4.30.020

and Directive No. 5006R-C section V(F)(3).

5. Specification 5 of DR no. 265/2013 against respondent Reid and of

266/2013 against respondent Rivera must be sustained in that in

their MEO 16 interviews respondents falsely stated that no force

was used, in violation of Department rule 4.30.020 and Directive

No. 5006R-C section V(F)(3).

RECOMMENDATION

Upon making the above findings, I requested and received summaries of respondents’

personnel histories in order to make appropriate penalty recommendations. Respondent Reid

was appointed in 2008 and has no prior disciplinary record. Respondent Rivera was appointed in

2002 and also has no prior disciplinary record.

Respondents’ actions of entering an inmate’s cell in part to punish him constitute serious

misconduct. Even though no serious injuries were inflicted, the incident was made worse by

several factors. The entry into the inmate’s cell was coordinated by the three officers in violation

of multiple Department and facility rules intended to prevent just such an occurrence. The

evidence suggests that the officers entered the cell with the improper intentions of either

punishing the inmate for past infractions or dissuading him from future infractions, or perhaps

both. The confrontation occurred while the inmate was rear-handcuffed and unable to shield

himself from blows. Following the encounter, the officers reported nothing to the area captain

and left the inmate lying in his cell for almost three hours, after which the actions of the other

inmates finally brought the captain to the area. Both respondents falsely denied using or seeing

any force used in their written reports and in their interviews.

- 15-

Penalties for officers found to have used excessive force on inmates have ranged from 20

days to termination, depending on “the employee’s disciplinary record, the extent of force, the

degree of provocation, if any; and the extent of any subsequent deception.” Dep’t of Correction

v. Scott, OATH Index No. 376/06 at 5 (July 10, 2006). Counsel for petitioner recommended that

respondents be suspended for 60 days for the misconduct here. Even considering the multiple

aggravating factors, given both officers’ good work history and the absence of any serious injury

to the inmate, this seems excessive. Past cases indicate that 60-day penalties have been reserved

for officers with prior disciplinary records or other aggravating factors. See, e.g., Dep’t of

Correction v. Saint-Phard, OATH Index No. 172/11 (Nov. 23, 2010) (60-day suspension for

officer who dispersed chemical agent within three feet of a rear-handcuffed inmate and placed

the inmate in a chokehold); Dep't of Correction v. Davis, OATH Index Nos. 2648/09 & 2649/09

at 12-16 (Feb. 12, 2010) (60-day suspension recommended for officer with a six-year tenure and

two prior disciplinary penalties, one involving use of force reporting, who used impermissible

and unnecessary force, filed false and misleading use of force reports, and made false and

misleading statements during MEO 16 interviews).

In the absence of other compelling factors, officers with good work records found guilty

of using excessive force and related charges have received suspension penalties of 20 to 40 days.

Dep’t of Correction v. Pannizzo, OATH Index No. 1691/03 (Nov. 1, 2004), modified on penalty,

NYC Civ. Serv. Comm’n Item No. CD 06-69-M (July 6, 2006) (60-day suspension reduced to 40

days by Civil Service Commission); Dep’t of Correction v. Pelle, OATH Index No. 1410/07

(May 22, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CD 08-11-SA (Feb. 20, 2008) (35-day

suspension); Dep’t of Correction v. Hills, OATH Index No. 632/04 (Apr. 26, 2004), modified on

penalty, Comm’r Dec. (Oct. 28, 2004) (30-day suspension); Dep't of Correction v. Fulton,

OATH Index No. 513/02 (Mar. 13, 2002), aff’d, NYC Civ. Serv. Comm’n Item No. CD 03-92-

SA (Sept. 18, 2003) (20-day suspension); Dep’t of Correction v. Andrews, OATH Index No.

296/90 (Apr. 17, 1990) (20-day suspension).

The evidence here suggests that Officer Reid, the steady officer in unit 1B who led the

charge into the cell, was responsible for the decision to enter Mr. Rutherford’s cell and for

instigating the punishment inflicted inside the cell. According to Mr. Rutherford, he and Officer

Reid had been arguing for days about Mr. Rutherford’s telephone privileges as well as about

- 16-

Officer Reid’s complaints about other facility infractions. The inmate’s statements indicated that

Officer Reid asked to see Mr. Rutherford’s rib and that another officer told Officer Reid to stop.

In addition, Officer Reid has only been working for the Department for six years. All of these

considerations indicate that Officer Reid is deserving of a higher penalty.

Officer Rivera is deserving of a lower penalty because he seems to have had less

interaction with Mr. Rutherford. He was the last officer to enter the cell, behind Officers Reid

and Orlandi. According to one of the inmates, Officer Rivera told Officer Reid to “stop.”

Unlike Officer Orlandi, who tried to trick the inmate into releasing the slot by falsely promising

to escort him out of the unit, Officer Rivera’s participation in the incident with the inmate seems

to have been limited to entering the cell, providing support to the other two officers, and failing

to come forward regarding the force. In addition, Officer Rivera has been working for the

Department for 12 years without any prior discipline.

In light of the seriousness of the misconduct and consideration of respondents’ different

degrees of culpability, I recommend that Officer Reid be suspended for 45 days and that Officer

Rivera be suspended for 30 days.

John B. Spooner

Administrative Law Judge

June 18, 2014

SUBMITTED TO: JOSEPH PONTE Commissioner APPEARANCES: ADRIAN LAURIELLO, ESQ. Attorney for Petitioner LOUIS ALBERT, ESQ. Attorney for Respondent

- 17-

THE CITY OF NEW YORK

CITY CIVIL SERVICE COMMISSION

------------------------------------------------------------X

IN THE MATTER OF THE APPEAL OF:

RIVERA, OSVALDO

DATE: 01/23/15

Appellant:

-against

NYC DEPARTMENT OF CORRECTION

Respondent:

Pursuant to Section 76 of the New York

State Civil Service Law

------------------------------------------------------------X

PRESENT:

NANCY G. CHAFFETZ, COMMISSIONER

CHAIR

CHARLES D. MCFAUL, COMMISSIONER

LOUIS ALBERT, ESQ.

REPRESENTIVE FOR APPELLANT

APPELLANT NOT PRESENT

ADRIAN LAURIELLO, ESQ.

REPRESENTATIVE FOR RESPONDENT

STATEMENT

On Thursday, December 4, 2014, the City Civil Service Commission heard oral argument in the

appeal of OSVALDO RIVERA, Correction Officer, NYC Department of Correction ("DOC''),

from a determination by the DOC, finding him guilty of charges of incompetency or misconduct

and imposing a penalty of a 30 Day Suspension following an administrative hearing conducted

pursuant to Civil Service Law Section 75.

- 18-

THE CITY OF NEW YORK

CITY CIVIL SERVICE COMMISSION

---------------------------------------------------------------------

In the Matter of the Appeal of

OSVALDO RIVERA

Appellant

-against-

NEW YORK CITY DEPARTMENT OF CORRECTION

Respondent

Pursuant to Section 76 of the New York

Civil Service Law

CSC INDEX NO.: 2014-1131

-----------------------------------------------------------------------------

DECISION

PRESENT:

NANCY G. CHAFFETZ, COMMISSIONER

CHAIR

RUDY WASHINGTON. COMMISSIONER

VICE CHAIR

CHARLES D. McFAUL

COMMISSIONER

OSVALDO IUVERA (“Appellant”) appealed from a determination of the New York

City Department of Correction (“DOC") finding him guilty of incompetency or misconduct and

imposing a penalty of a 30-day suspension following disciplinary proceedings conducted

pursuant to Civil Service Law Section 75.

The Civil Service Commission (''The Commission") conducted a hearing on December 4,

2014.

This Commission has carefully reviewed the record in this case and the testimony

adduced at the departmental hearing. Based upon this review, the Civil Service Commission

finds no reversible error and affirms the decision and penalty imposed by the DOC.

- 19-

Nancy G. Chaffetz, Commissioner, Chair

Charles D. McFaul, Commissioner

Concurring: Rudy Washington, Commissioner, Vice Chair

Dated: Jan. 23, 2015

‘

- 20-

THE CITY OF NEW YORK

CITY CIVIL SERVICE COMMISSION

------------------------------------------------------------X

IN THE MATTER OF THE APPEAL OF:

REID, OSMOND

DATE: 01/23/15

Appellant:

-against

NYC DEPARTMENT OF CORRECTION

Respondent:

Pursuant to Section 76 of the New York

State Civil Service Law

------------------------------------------------------------X

PRESENT:

NANCY G. CHAFFETZ, COMMISSIONER

CHAIR

CHARLES D. MCFAUL, COMMISSIONER

LOUIS ALBERT, ESQ.

REPRESENTIVE FOR APPELLANT

APPELLANT PRESENT

ADRIAN LAURIELLO, ESQ.

REPRESENTATIVE FOR RESPONDENT

STATEMENT

On Thursday, December 4, 2014, the City Civil Service Commission heard oral argument in the

appeal of OSMOND REID, Correction Officer, NYC Department of Correction ("DOC''), from

a determination by the DOC, finding him guilty of charges of incompetency or misconduct and

imposing a penalty of a 45 Day Suspension following an administrative hearing conducted

pursuant to Civil Service Law Section 75.

- 21-

THE CITY OF NEW YORK

CITY CIVIL SERVICE COMMISSION

---------------------------------------------------------------------

In the Matter of the Appeal of

OSMOND REID

Appellant

-against-

NEW YORK CITY DEPARTMENT OF CORRECTION

Respondent

Pursuant to Section 76 of the New York

Civil Service Law

CSC INDEX NO.: 2014-1133

-----------------------------------------------------------------------------

DECISION

PRESENT:

NANCY G. CHAFFETZ, COMMISSIONER

CHAIR

RUDY WASHINGTON. COMMISSIONER

VICE CHAIR

CHARLES D. McFAUL

COMMISSIONER

OSMOND REID (“Appellant”) appealed from a determination of the New York

City Department of Correction (“DOC") finding him guilty of incompetency or misconduct and

imposing a penalty of a 45-day suspension following disciplinary proceedings conducted

pursuant to Civil Service Law Section 75.

The Civil Service Commission (''The Commission") conducted a hearing on December 4,

2014.

This Commission has carefully reviewed the record in this case and the testimony

adduced at the departmental hearing. Based upon this review, the Civil Service Commission

finds no reversible error and affirms the decision and penalty imposed by the DOC.

- 22-

Nancy G. Chaffetz, Commissioner, Chair

Charles D. McFaul, Commissioner

Concurring: Rudy Washington, Commissioner, Vice Chair

Dated: Jan. 23, 2015