- 9 -

Dep’t of Correction v. Scurry

OATH Index No. 1460/08 (June 4, 2008)

Correction captain failed to provide medical attention to injured inmate and failed to report an inmate fight to his tour commander. ALJ recommended demotion.

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

DALE SCURRY

Respondent

______

REPORT AND RECOMMENDATION

ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge

This is an employee disciplinary proceeding referred by petitioner, the Department of Correction, pursuant to section 75 of the Civil Service Law. Respondent Dale Scurry, a correction captain, is charged with failing to provide medical attention to an inmate injured during a fight and failing to report the inmate fight to the tour commander in violation of the Department’s Rules and Regulations (ALJ Ex. 1).

A hearing was conducted before me on April 28 and 29, 2008. In support of the charges, petitioner presented nine Department witnesses and documentary evidence. Respondent called an assistant deputy warden (“ADW”) and testified on his own behalf. I find that petitioner sustained the charges and recommend that Captain Scurry be demoted to a correction officer.

ANALYSIS

On March 11, 2007, Captain Scurry was the 7:00 a.m. to 3:30 p.m. area supervisor for the “Bravo House” which includes 6-Main, a dormitory in the Eric M. Taylor Center that houses approximately 50 inmates (Tr. 121, 290). At 12:00 p.m. Captain Scurry was supervising the feeding of inmates. Officer Duggins was assigned to the B-post in 6-Main. As he was escorting inmates from the feeding to the dormitory, Officer Duggins gave Captain Scurry a note from an inmate named Plummer which essentially stated that the inmate could not remain in 6-Main because there was a “hit out” on him (Tr.147, 290; Pet Exs. 2, 18).

Captain Scurry accompanied Officer Duggins to the dormitory to investigate the inmate’s claim (Tr. 148, 291). Officer Duggins had all inmates sit on their beds so that he could count them. He did not observe any injuries on Plummer (Tr. 148, 151; Pet. Ex. 2). After the inmates were released from the count, a fight broke out between inmates Plummer and Mofad by the front gate. Duggins and Scurry ran to the inmates and Officer Duggins separated them. Both inmates were searched with negative findings (Tr. 149-50; Pet. Ex. 18). Inmate Plummer was a member of the “Crip” gang and inmate Mofad a “Blood” (Tr. 92, 215-16, 291; Pet. Ex. 8). Inmate Plummer was placed outside the gate with Officer Mercado and Captain Scurry. When Officer Duggins joined them he observed a “scratch” on inmate Plummer’s face which was not bleeding. The scratch ran from the inmate’s right ear to his mouth. Inmate Plummer asked to be removed from the dorm and placed on the “north side” (Tr. 150-51). Captain Scurry ordered Officer Duggins to prepare an injury report for Plummer and to infract him for fighting. Duggins prepared the two documents and gave them to Scurry (Tr. 152, 164-65, 242; Pet. Ex. 2 at 24; Pet Exs. 8, 16, 18).

Captain Scurry arranged to have inmate Plummer transferred through “movement” to the “Delta House” 10-Main dormitory which is supervised by Captain Gutmann. He called Captain Gutmann to advise that the inmate was coming. At approximately 1:25 p.m., Officer Mercado escorted inmate Plummer with his locator card to 10-Main. Officer Buchanan, the 10-Main B-post officer, returned from her meal and saw inmate Plummer standing at the gate with Officer Daniels. Daniels advised her that Plummer was going to be added to the 10-Main count. Officer Buchanan observed that the inmate had a “cut” on his face and that his lip and jaw looked “swollen” (Tr. 140-41). She asked the inmate if he had been to the medical clinic and he said no. Officer Buchanan called Captain Gutmann because she did not want to accept an injured inmate who had not been to the clinic (Tr. 142-43; Pet. Ex. 6). Captain Gutmann told Buchanan not to accept the inmate and responded to the area (Tr. 228). When he got there he observed that the inmate had a deep scratch on his face (Tr. 229-31; Pet. Ex. 3). Captain Gutmann told Officer Buchanan to return to her post and radioed Captain Scurry to come to 10-Main. The inmate advised Gutmann that he had been in a fight (Tr. 245; Pet. Ex. 21).

According to Captain Gutmann, when Scurry arrived he advised that the inmate had not been in a fight (Tr. 242) and that Gutmann had to accept the inmate’s transfer into 10-Main. When Gutmann refused, Scurry waived his hands in the air in an intimidating manner and stepped close to Gutmann yelling that he had to accept the transfer. Gutmann refused saying the inmate had to go to the clinic. Captain Scurry ignored Captain Gutmann and escorted the inmate inside the dormitory (Tr. 247-253; Pet. Ex. 21). The inmate was placed on a bed near Officer Buchanan (Tr. 143-44; Pet. Ex. 6). Captain Gutmann testified that he was stunned by Scurry’s actions and rather than have a confrontation with him in front of the inmates, Gutmann agreed to go to 6-Main to investigate the situation (Tr. 231-32; Pet. Exs. 6, 21).

A number of inmates surrounded Plummer. Officer Buchanan had all inmates sit on their beds and she watched Plummer (Tr. 143-44; Pet. Ex. 6). Officer McQueen, the 10-Main A-post officer, returned from her meal break and saw the gate to 10-Main open and Captains Scurry and Gutmann standing in front of it with other correction officers. She found this strange and asked what was going on. Captain Scurry advised that he had placed an inmate inside the dormitory who did not want to be there. Officer McQueen went inside and Officer Buchanan told her about the inmate and asked her to look at him (Tr. 144, 262-64). Officer McQueen spoke to inmate Plummer who stated he had been in a fight and had came from 6-Main. McQueen asked if he had been to the clinic and he said no. She observed that the inmate had a “scratch” on his face and that his mouth was swollen (Tr. 264-65). She called the clinic and verified that Plummer had not been there. McQueen took the inmate locator card and began to escort Plummer to the clinic. Officer McQueen testified that on the way she ran into Captain Scurry who asked her where she was going. When she advised that she was taking Plummer to the clinic, Scurry ordered her to return Plummer to 10-Main. Believing this was an unlawful order, McQueen refused and the two got into a lengthy argument. According to McQueen, she eventually handed Scurry the locator card, left Scurry with the inmate, and went back to her post. Captain Scurry then called Officer McQueen and pressured her to take the inmate. Since it was close to the tour change and she did not want to argue further, she told him to bring the inmate back to 10-Main. Captain Scurry returned with Plummer (Tr. 265-68; Pet. Exs. 5, 22).

Captain Von Braunsberg, the 3:00 p.m. to 11:30 p.m. area supervisor for Delta House, relieved Captain Gutmann. At roll call, Gutmann advised him that there had been an inmate fight in 6-Main, the inmate had been transferred to 10-Main, the inmate was going to the clinic, and that Captain Scurry was handling the situation. Van Braunsberg thought this sounded peculiar and went immediately to 10-Main (Tr. 176). On the way, Von Braunsberg saw Captain Scurry. According to Von Braunsberg Scurry followed him and advised that inmate Plummer wanted to be in isolated housing. When Von Braunsberg arrived at 10-Main, Officer McQueen was relieved to see him and brought Von Braunsberg the inmate. The inmate had a “swollen lip” and a “scratch” on his face and stated he had been in a fight. Von Braunsberg told Captain Scurry that he was taking the inmate to the clinic. Captain Von Braunsberg stated that Scurry then produced the inmate injury report from his back pocket (Tr. 177- 81, 268; Pet. Exs. 4, 19).

Inmate Plummer was taken to the clinic by Von Braunsberg (Tr. 181, 201-03; Pet. Exs. 19, 22). The inmate was subsequently seen by a physician’s assistant. The inmate had a broken jaw and a six inch face laceration which penetrated two layers of skin. The inmate was sent to Bellevue Hospital for possible sutures and treatment for his jaw (Tr. 13-14; Pet. Ex. 8). Inmate Mofad was seen at 6:55 p.m. and was treated for a lacerated earlobe (Pet. Exs. 10, 15).

Notifications about the inmate fight were made to the tour commander. At 6:50 p.m. 6-Main was locked down and searched and at 7:00 p.m. a crime scene established. Probe teams were called and during the search Captain Von Braunsberg was injured in a use of force incident (Tr. 185-88). Two weapons consisting of sharp metal were found (Tr. 84, 111). At 7:18 p.m. ADW Lewis notified the Central Office Desk that an inmate slashing had occurred (Tr. 39, 77, 79, 125-26, 210-13; Pet. Ex. 10). An investigation ensued to determine why notifications of the inmate fight had not been made to the tour commander within 15 minutes and why the injured inmates were not immediately taken to the clinic as required by Department policy (Tr. 44-45, 48, 76-78, 138, 213; Pet. Ex. 9).

In a disciplinary proceeding, the Department “has the burden of proving its case by a fair preponderance of the credible evidence.” Dep’t of Correction v. Hall, OATH Index No. 400/08, at 2 (Oct. 18, 2007). Here, respondent is charged with failing to get inmate Plummer medical attention and failing to notify his tour commander of the inmate fight.

Respondent did not deny that he failed to provide medical attention to inmate Plummer and admitted that he did not get the inmate to the clinic in “proper time” (Tr. 316). Instead, respondent offered a variety of excuses and explanations. Respondent claimed that inmate Plummer sustained only a small scratch which did not need immediate attention (Tr. 294, 301-02; Pet. Ex. 1 at 32; Pet. Ex. 23). The witnesses who observed the facial injury described it in various degrees of severity. However, everyone who saw the inmate noticed that he was injured. According to the injury report, the laceration was 6 to 8 centimeters long by 1.5 centimeters wide (Pet. Ex. 8) and photographs show a long red gash running from the inmate’s ear to his mouth (Pet. Ex. 7). Regardless whether this was a scratch or something more serious, the Department Directive on “Injury to Inmate Reports” provides that any inmate involved or suspected of being involved in a physical altercation shall be the subject of an injury to inmate report. It is the Department’s policy that all inmates involved or suspected of being involved in a fight are sent for medical examination because injuries are not always visible (Tr. 37, 78; Pet. Ex. 9). Here, respondent was present when the inmate fight took place and observed an injury on Plummer. Therefore, it was incumbent on respondent to send the inmate for medical attention regardless how minor he thought the injury to be. In fact, respondent’s assessment was mistaken for Plummer sustained a fractured jaw in addition to the cut on his face.

Respondent also claimed that the inmate did not want to go to the clinic and that he kept saying he wanted to be placed in isolated housing (Tr. 293; Pet. Ex. 23). Going to the clinic is mandatory and the decision is not left up to the inmate (Tr. 36, 155). Respondent never explicitly testified that he explained to Plummer that it was not an option to refuse medical treatment or that the inmate made an outright refusal. Even if the inmate had refused, Department policy requires that notifications be made and, if necessary, a probe team called to physically remove the inmate and escort him to the clinic (Tr. 100). In any event, I find respondent’s claim that the inmate did not want medical treatment suspect because when asked, Plummer went willingly to the clinic with Officer McQueen shortly after the incident and again three hours later with Captain Von Braunsberg.

To the extent respondent sought to shift this responsibility to Captain Gutmann or claim that Gutmann delayed the inmate’s medical treatment (Pet. Ex. 23), even though Gutmann had an obligation to take Plummer to the clinic when the injured inmate was moved to 10-Main, respondent had the primary responsibility because the injury occurred in his housing unit. I also credit Captain Gutmann’s testimony that respondent resisted his request to take the inmate to the clinic before placing him in 10-Main. Captain Gutmann was very credible when he testified that he had always looked up to respondent, that he did not understand why respondent was behaving this way, and that he was trying to be respectful of respondent who was responsible for the situation (Tr. 232, 239, 241). Captain Gutmann’s actions did not excuse respondent’s misconduct.

Respondent also stated that, since this was a gang-related fight and Plummer wanted to be transferred to a safe location, his primary concern was to get the inmate out of 6-Main (Tr. 294, 302). While this was a legitimate concern, it did not preclude respondent from arranging to have Plummer taken to the clinic first. Taking Plummer to the clinic would have removed the inmate from any immediate danger. The transfer to an appropriate housing area could have been investigated and arranged while the inmate was getting medical treatment. I credited Department witnesses who indicated that inmates should not be transferred without staff investigating the basis for the request (Tr. 86; Pet. Ex. 4).

Respondent also claimed he did not take the inmate to the clinic because he wanted to investigate the inmate fight (Tr. 311, 313, 325). Again, while an investigation was appropriate, it did not preclude having the injured inmate removed for medical evaluation. Respondent could have interviewed the inmate in the clinic. This excuse was also in conflict with respondent’s other explanation that he could not take the inmate to the clinic because respondent was assigned to the inmate feeding (Tr. 294, 296-98, 301). Respondent could have ordered an officer to take the inmate to the clinic if he was unable to do so or notified his tour commander to obtain additional personnel.