11-000490 Jimmie Davis vs. Pinellas County Sheriff's Office Status: Closed Recommended Order on Monday, May 16, 2011.

Summary: Deputy admitted to the alleged violations. Based on the disciplinary guidelines, termination of employment was appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIMMIE DAVIS , )

)

Petitioner , )

)

vs. ) Case No. 11 - 0490

)

PINELLAS COUNTY SHERIFF'S )

OFFICE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on April 4, 2011, in Largo, Florida, before Susan B. Harrell, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jimmie Davis, pro se

2086 Pine Ridge Drive

Clearwater, Florida 33763

For Respondent: Sherwood S. Coleman, Esquire

Pinellas County Sheriff's Office

10750 Ulmerton Road

Largo, Florida 33778

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner should be

terminated from employment with Resp ondent.

PRELIMINARY STATEMENT

By memorandum dated January 14, 2011, Respondent, Pinellas

County Sheriff's Office (Sheriff's Office), notified Petitioner,

Jimm ie Davis (Mr. Davis), that his employment with the Sheriff's

Office would be terminated based on violations of the Sheriff's

Office General Order 3 - 1.1; Rule and Regulation 5.4, relating to

duties and responsibilities; and Rule and Regulation 5.14c,

relating to knowingly making a false entry or caus ing a false

entry to be made in any official r ecord o f the Sheriff's Office.

Mr. Davis appealed to the Sheriff's Office Civil Service

Board pursuant to the Sheriff's Office General Order 10 - 3. In

his appeal, he stated:

I was terminated for violation of General

Order 3 - 1.1, Rule and Regulation 5.4

relating t o Duties and Responsibilities and

Rule and Regulation 5.14c, Knowingly making

a false entry in any official record. While

I did admit to these violations , I do not

believe they warranted a termination of

employment.

The Sheriff's Office Civil Service B oard forwarded the

appeal to the Division of Administrative Hearings for assignment

of an A dministrative L aw J udge to conduct a final hearing.

At the final hearing, the Sheriff's Office presented

Sergeant Thomas E. Klein and Captain Gregory S. Handsel as its

witnesses. Respondent's Exhibi ts 1 through 7 were admitted in

evidence. Mr. Davis testified in his own behalf and did not

present any exhibits for admission in evidence.

The one - volume Transcript was filed on April 28, 2011. The

parties agree d to file their proposed recommended orders within

ten days of the filing of the T ranscript. The parties timely

filed their p roposed r ecommended o rders, which have been

considered in the preparati on of this Recommended Order.

FINDINGS OF FACT

1. At all ti mes material to this case, Mr. Davis was

employed by the Sheriff's Office as a deputy sheriff. He had

been employed by the Sheriff's Office for 11 years.

2. On July 26, 2010, Mr. Davis was assigned to work a post

in the healthcare facility of the Pinella s County jail ,

beginning at 7 :00 a.m. This facility houses inmates who have

medical problems. The inmates are placed in pods, and the pods

are monitored by using direct supervision, meaning a deputy is

stationed inside the pod with the inmates and is abl e to

directly monitor and interact with the inmates. Additionally,

the deputy supervising the inmates is able to summon medical

assistance within the building for the inmates.

3. On July 26, 2010, I nmate Kyle Howard (Mr. Howard) was

housed in the pod tha t Mr. Davis was supervising. On that same

day, Mr. Howard came to Mr. Davis and told Mr. Davis that he was

ill. Sometime during the day, two inmates came to Mr. Davis and

told him that Mr. Howard was si ck and throwing up a lot.

Standing about 30 feet aw ay from Mr. Howard, Mr. Davis witnessed

Mr. Howard "over the toilet in a vomiting mode."

4. Around 9 :00 a.m. on July 26, 2010, the nurse , who gave

medications to the inmates, gave Mr. Howard a suppository for

the nausea.

5. Sometime between 3:08 p.m . and 3:47 p.m., an inmate

came to Mr. Davis and told him that Mr. Howard was not

responsive. Mr. Davis went to Mr. Howard's cell, discovered

that Mr. Howard was not responsive , and called for emergency

medical assistance. Mr. Howard was taken to the hospital , where

he was pronounced dead.

6. One of the responsibilities of Mr. Davis was to

interact with inmates to determine what problems may exist and

to summon medical assistance if necessary. On July 26, 2010,

Mr. Davis did not attempt to speak to Mr. Howar d to de termine

what was wrong with him and did not call for medical assistance

until Mr. Howard was found unresponsive.

7. Mr. Davis was required to check on the inmates in the

pod every 30 minutes to monitor the wellness and security of the

inmates in th e pod. Mr. Davis is required to check each cell

and inmate during these checks. After each 30 - minute check,

Mr. Davis is required to record on a Daily L og Report that he

performed the check. The Daily Log Reports are part of the

official records of the Sheriff's Office.

8. Mr. Davis admitted that he did not make a complete

check every 30 minutes as he was required to do. He walked part

of the way down the hall and observed some but not all the

inmates. He entered in the Daily Log Report that he ha d ma de

the checks as required.

9. During some of Mr. Dav is's shift on July 26, 2010,

Mr. Davis was playing Hearts on the computer and was checking

Yahoo and MSN. Prior to the incident at issue, Mr. Davis had

been disciplined two time s for inappropriate use o f computers

while on duty.

10. Mr. Davis has admitted that he committed the

violations that are charged , but contends that he should be

suspended rather than terminated from his employment.

11. The Sheriff Office's General Order 10 - 2 sets forth the

guide lines to be used in the application of discipline. The

range of penalties is based on the severity of the violation,

from Level One, which is the least severe, to Level Five, which

is the most severe.

12. Failing to monitor Mr. Howard and to call for med ical

assistance for Mr. Howard are severe violations and are Level

Five violations. Failing to accurately record his 30 - minute

checks , because he was not checking each of the inmates during

his rounds , is also a severe violation and is a Level Five

violat ion.

13. General Order 10 - 2 provides that two Level Five

violations are assigned 60 points. The disciplinary range for

60 points is a seven - day suspension to termination.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction ov er the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2010); ch. 2008 -

285 § 3 , at 6, Laws of Fl a .

15. The Sheriff's Office has the burden to establish the

allegations in the Administrative Complaint by a preponderance

of the evidence as set forth in section 10 - 2.4 T, General

Order 10 - 2.

16. By his own admission, Mr. Davis committed the

violations alleged. The issue becomes what penalty should be

imposed.

17. Mr. Davis had responsibility of the care and custody

of inmates under his supervision. He easily could have called

for medical assistance for Mr. Howard, but failed to do so. He

did not try to ascertain from Mr. Howard what was the cause of

his illness. He did not make complete 30 - minute checks as he

was supposed to do. Mr. Howard died while on Mr. Davis's watch,

and Mr. Davis made no effort to assist Mr. Howard. Termination

of his employment is justified by the facts of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclu sions of

Law, it is RECOMMENDED that a f inal o rder be entered terminating

Mr. Davis's employment with the Sheriff's Office.

DONE AND ENTERED this 1 6 th day of May , 2011 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administ rative Hearings

this 1 6 th day of May , 2011 .

COPIES FURNISHED :

Sherwood S. Coleman, Esquire

Pinellas County Sheriff's Office

10750 Ulmerton Road

Largo, Florida 33778

Jimmie Davis

2086 Pine Ridge Drive

Clearwater, Florida 33763

James L. Bennett, Coun ty Attorney

Pinellas County Attorney 's Office

315 Court Street

Clearwater, Florida 33756

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.