State of North Carolina s66

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF AVERY 02 OSP 0375

JERRY THOMAS FERRELL,

Petitioner,

v.

N.C. DEPARTMENT OF CORRECTION,

Respondent.

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DECISION

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This matter was heard before the Honorable James L. Conner, II, Administrative Law Judge, on April 10, 2003, in the Henderson County Courthouse, and May 27, 2003 in the Watauga County Courthouse.

APPEARANCES

For the Petitioner: Bruce L. Kaplan

P.O. Box 455

Boone, North Carolina 28607

For the Respondent: Neil Dalton

Assistant Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, NC 27602

EXHIBITS

Petitioner’s Exhibits:

Petitioner’s Exhibit 1 Evaluations of Petitioner

Petitioner’s Exhibit 2 Letter from Sauls to Gwynn

Petitioner’s Exhibit 3 Probationary Detention Officer Certification

Respondent’s Exhibits:

Respondent’s Exhibit A Internal Investigation pp. 1-12, 15

Respondent’s Exhibit B Letter from Johnson to Ferrell pp. 1

Respondent’s Exhibit C Notice of Pre-dismissal Conference pp. 1-3

Respondent’s Exhibit D Letter from Johnson to Moon pp. 1-2

Respondent’s Exhibit E Letter from Johnson to Bailey pp.1-2

Respondent’s Exhibit F Recommendation for Dismissal letter pp. 1-3

Respondent’s Exhibit G Dismissal letter to Petitioner pp. 1-4

Respondent’s Exhibit H Letter from Denning to Petitioner pp. 1-2

Respondent’s Exhibit I DOC Policy and Procedure for use of force pp. 1-9

Respondent’s Exhibit L DOC Policy and Procedure for personal conduct pp. 1-4

Respondent’s Exhibit M Subpoena to Sean Owens pp. 1-4

Respondent’s Exhibit N Respondent’s Requests for Admissions with Petitioner’s answers pp. 1-2

Offer of Proof Exhibit O Deposition of Sean Owens

FINDINGS OF FACT

1.  At the time of his dismissal, the Petitioner, Jerry Ferrell, had been employed in excess of 10 years as a Correctional Officer at Blue Ridge Youth Center (Blue Ridge), in Newland, North Carolina.

2.  Glenda Wyatt was a Correctional Officer with the North Carolina Department of Correction [Respondent] for more than six years, and was assigned to the third shift at Blue Ridge during the month of February 2001. Testimony of Glenda Wyatt Transcript pages [T. pp.] 15-16.

3.  Blue Ridge was a prison of Respondent that housed up to 64 youthful inmates in a minimum security setting. The inmates served as part of a forestry program wherein they planted trees, picked up litter and put out forest fires.

4.  At approximately 12:00 a.m. on February 18, 2001, the Petitioner was on duty in A Dorm of Blue Ridge. Respondent’s Exhibit [R. Ex.] App. 6.

5.  Twice between 10:00 p.m. and 12:00 a.m. on the night in question, Petitioner discovered Inmate Barron Smith in an unauthorized room. Both times Petitioner ordered Inmate Smith back to his room. R. Ex. App. 6-7; Testimony of Barron Smith T. pp. 104.

6.  At approximately 12:00 a.m. on February 18, 2001, Officer Wyatt arrived in A Dorm to relieve Petitioner. R. Ex. App. 2; Testimony of Glenda Wyatt T. pp. 17.

7.  While in the officer’s station, Petitioner stated to Officer Wyatt that Inmate Smith was not to leave his room for the rest of the night. R. Ex. App. 7; Testimony of Petitioner T. pp. 226.

8.  Petitioner called to Inmate Smith from the officer’s station and told him that he was to remain in his room for the rest of the night. Inmate Smith responded by saying “you don’t have to be smart with me” and “you don’t have to treat me like a kid.” R. Ex. App. 15; Testimony of Barron Smith T. pp. 105.

9.  Inmate Smith said something which prompted Officer Wyatt to say “uh-oh.” Petitioner asked what was said and Officer Wyatt did not respond. R. Ex. App. 7; Testimony of Petitioner T. pp. 244-245.

10.  Petitioner then left the officer’s station, stomped down the hall, entered Inmate Smith’s room, and slammed the door shut. Officer Wyatt could feel the vibration of the slammed door from the officer’s station. R. Ex. App. 3; Testimony of Glenda Wyatt T. pp. 19-20.

11.  Dan Johnson, Superintendent of Blue Ridge, measured the distance from Inmate Smith’s door to the officer’s station to be 45 feet. Testimony of Dan Johnson T. pp. 158.

12.  Inmate Sean Owens also testified that he heard Inmate Smith’s door slam after Petitioner had entered Inmate Smith’s room. Testimony of Sean Owens T. pp. 261.

13.  Unlike most of the doors on the inmates’ bedrooms, Inmate Smith’s door had no window so seeing into his room with the door shut was impossible. Despite the existence of windows on most of the doors, inmates are required to keep their doors open at all times and it was very unusual for an inmate’s door to be shut. Had the door been open, Officer Wyatt could have seen into Inmate Smith’s room from the hallway outside of the officer’s station. Testimony of Glenda Wyatt T. pp. 18.

14.  Once in Inmate Smith’s room Petitioner grabbed Inmate Smith by the throat and pushed him against the wall. While choking Inmate Smith, Petitioner said, “I do what I want around here, do you understand that.” R. Ex. App. 15; Testimony of Barron Smith T. pp. 105.

15.  Inmate Smith testified that “I just couldn’t swallow” and “I just couldn’t breathe” while the Petitioner held his throat. Inmate Smith testified that his “fear” was, “I mean, I couldn’t breathe.” Testimony of Barron Smith T. pp. 105-106.

16.  Officer Wyatt could hear Petitioner shouting from Inmate Smith’s room. Testimony of Glenda Wyatt T. pp. 20.

17.  Petitioner denied that he was shouting or talking loudly while in Inmate Smith’s room. Testimony of Petitioner T. pp. 243.

18.  Petitioner also testified that Inmate Smith never raised his voice during the time that Petitioner was in his room. Testimony of Petitioner T. pp. 241.

19.  Inmate Smith remained seated and did not attempt to fight back because it is against the rules to advance on an officer. Testimony of Barron Smith T. pp. 105-106.

20.  Petitioner then left Inmate Smith’s room and returned to the officer’s station. Testimony of Glenda Wyatt T. pp. 20.

21.  After Petitioner returned to the officer’s station, Officer Wyatt said to Petitioner “Gosh. These guys just don’t know when to keep their mouths shut, do they?” Petitioner responded, “No. I’m just glad that there is a solid door on that room.” At the hearing, Petitioner did not deny making the statement concerning the solid door. Petitioner was smiling when he said it. R. Ex. App. 3; Testimony of Glenda Wyatt T. pp. 21, 49.

22.  The only logical reason for Petitioner making the statement concerning the solid door is that he had not wanted to be seen while in Inmate Smith’s room. Petitioner testified that neither he nor Inmate Smith were loud, therefore he would have been unconcerned about the door’s ability to block sound. Testimony of Petitioner T. pp. 241-243.

23.  After speaking to Officer Wyatt, Petitioner left A Dorm and went to B Dorm, which was his next assignment. Testimony of Petitioner T. pp. 228.

24.  After Petitioner left A Dorm, Inmate Smith approached the officer’s station and asked Officer Wyatt to speak to the sergeant. Inmate Smith then told Officer Wyatt that the Petitioner had choked him. R. Ex. A; Testimony of Glenda Wyatt T. pp. 21; Testimony of Barron Smith T. pp. 107.

25.  Prior to speaking to Officer Wyatt, Inmate Smith had spoken with Inmate Sean Owens. Inmate Smith showed Inmate Owens the marks on his neck. While Inmate Smith spoke with Officer Wyatt, Inmate Owens remained outside the officer’s station where he could listen, but could not be seen by Officer Wyatt. Testimony of Sean Owens T. pp. 262.

26.  Inmate Smith was visibly upset and there were red, finger-shaped marks on his neck. Ms. Wyatt thought Inmate Smith was about to cry. R. Ex. App. 4; Testimony of Glenda Wyatt T. pp. 22.

27.  Officer Wyatt called Sergeant David Beck to A Dorm and told him about the incident. R. Ex. App. 4; Testimony of Glenda Wyatt T. pp. 22.

28.  Sergeant Beck arrived about two minutes after Officer Wyatt called him. He interviewed Inmate Smith and observed redness on Inmate Smith’s neck. Sergeant Beck noticed that Inmate Smith was agitated and shaky and that his face was flushed. Sergeant Beck testified that his interview with Inmate Smith occurred at 12:13 a.m. Sergeant Beck had checked the clock in A Dorm when he arrived. R. Ex. App. 11; Testimony of David Beck T. pp. 69.

29.  Sergeant Beck determined that Inmate Smith was not in need of medical attention, since Inmate Smith was able to breathe. Testimony of David Beck T. pp. 96.

30.  At 12:25 a.m. Sergeant Beck telephoned Superintendent Dan Johnson at home and informed him of the incident. Contacting the Superintendent at home during the night was not a common occurrence. Sergeant Beck had never had to call Superintendent Johnson at home prior to this incident and has done so only once since then. Testimony of David Beck T. pp. 69-70.

31.  Sergeant Beck spoke with Petitioner at 12:35 a.m. and informed him that he had been accused of choking an inmate. R. Ex. pp. 11; Testimony of David Beck T. pp. 70

32.  Superintendent Johnson came to Blue Ridge at 1:45 a.m. on the morning of February 18, 2001 and spoke to Inmate Smith, Officer Wyatt, the Petitioner, Inmate Owens, Inmate Justin Sanders, and Sergeant Beck. Superintendent Johnson had each one make a written statement. R. Ex. A; Testimony of Dan Johnson T. pp. 149.

33.  Prior to writing his statement, Petitioner signed the Internal Investigation cover sheet, which states that “The penalty for providing false or purposefully misleading information may be dismissal.” R. Ex. App. 5.

34.  Superintendent Johnson did not speak with Inmate Smith until 5:20 a.m. on February 18, 2001. Superintendent Johnson did not observe the red marks on his neck at that time, five hours later. R. Ex. App. 15.

35.  Superintendent Johnson held a pre-dismissal conference with Petitioner on March 14, 2001. Petitioner was informed of the charges against him and was given an opportunity to respond. R. Ex. C.

36.  Petitioner was initially offered the opportunity to take a polygraph, but the test was never administered because Superintendent Johnson believed that the medication taken by the Petitioner might affect or invalidate the results. Testimony of Dan Johnson T. pp. 190.

37.  Petitioner had misgivings concerning the polygraph but agreed to take it. Testimony of Willard Jobe T. pp. 209.

38.  At the pre-dismissal conference, Petitioner denied ever having choked Inmate Smith and denied having slammed Inmate Smith’s door, in contrast to the testimony of Inmate Smith, the testimony of Officer Wyatt, and the testimony of Inmate Sean Owens. R. Ex. E; Testimony of Dan Johnson T. pp. 153.

39.  North Carolina Department of Correction Policy and Procedures Chapter F, Section .1503(d) states that: an officer is prohibited from using force solely as a result of verbal provocation. An officer shall not strike or attempt to strike an inmate who has abandoned his resistance or who is effectively restrained. The use of force as punishment is strictly prohibited. R. Ex. I p. 2.

40.  All Corrections Officers are instructed in the use of force policies and are given refresher training on those policies on a yearly basis during the course of their career. Testimony of Dan Johnson T. pp. 156-157; Testimony of Glenda Wyatt T. pp. 24-25.

41.  Corrections Officers are required to file a report with their Officer-In-Charge after any use of force occurs. All Corrections Officers are trained in this procedure as a part of their use of force training. R. Ex. I; Testimony of Glenda Wyatt T. pp. 26-27; Testimony of David Beck T. pp. 80.

42.  Petitioner did not file any use of force report concerning his confrontation with Inmate Smith. Testimony of Petitioner T. pp. 218; Testimony of David Beck T. pp. 80.

43.  Superintendent Johnson recommended that Petitioner be dismissed for Unacceptable Personal Conduct. R. Ex. F; Testimony of Dan Johnson T. pp. 153.

44.  Petitioner was terminated by letter on April 2, 2001 for Unacceptable Personal Conduct. The letter indicates that he was discharged due to the use of force against Inmate Smith and for failure to provide complete and accurate information during the initial investigation. R. Ex. G.

45.  Petitioner appealed his dismissal to the Secretary of Correction. His dismissal was upheld by certified letter received by him on or about June 4, 2001. R. Ex. H; R. Ex. N.

46.  Petitioner filed a Petition, 02 OSP 0375, for a contested case asserting that he was wrongfully discharged.

47.  At the hearing Petitioner testified that he has never had any allegations made against him of physical violence or misconduct with an inmate or citizen. Testimony of Petitioner T. pp. 214; Testimony of Willard Jobe, T. pp. 201-202.

48.  Petitioner has been issued formal discipline, in the form of written warnings, on two separate occasions for misconduct. The first written warning was for threatening a fellow officer. The second written warning was for using the word “nigger,” a racially derogatory term, in the company of a group of inmates. Testimony of Petitioner T. pp. 248-250; Testimony of Willard Jobe T. pp. 201-202.

49.  By denying that he had ever been previously accused of misconduct Petitioner gave false testimony at the hearing. Petitioner had incentive to further give false testimony regarding choking Inmate Smith.

50.  The North Carolina Department of Correction Appendix to Disciplinary Policy and Procedures, Section C, Appendix 6(A)(7) states that unacceptable personal conduct includes “falsification of a state application or in other employment documentation.” It also provides examples of unacceptable personal conduct including Section C, Appendix 6(B)(23), “failure to cooperate with Federal, State, Local, or Departmental officials or hindering internal/external investigations.” See R. Ex. L pp. 1, 3.

51.  Petitioner read and signed a form for the internal investigation attesting, under part (e), that he under stood that “The penalty for providing false or purposefully misleading information may be dismissal.” See R. Ex. App. 5.