15-000952 Pinellas County Sheriff&Apos;S Office vs. Raymond Ferrio Status: Closed Recommended Order on Tuesday, October 20, 2015.

Summary: Petitioner proved that Respondent's use of force against an older, sickly inmate in a wheelchair was unnecessary and excessive, justifying termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SHERIFF'S

OFFICE,

Petitioner,

vs. Case No. 15 - 0952

RAYMOND FERRIO,

Respondent.

_______________________________/

RECOMMENDED ORDER

An evidentiary hearing was hel d on July 22, 2015, by video

teleconference with sites in St. Petersburg and Tallahassee,

Florida, before Elizabeth W. McArthur, Administrative Law Judge,

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Paul G rant Rozelle, Esquire

Pinellas County SheriffÓs Office

10750 Ulmerton Road

Largo, Florida 33778

For Respondent: Brandi L. Hawkins, Esquire

The Cochran Firm, South Florida

657 South Drive, Su ite 304

Miami Springs, Florida 33166 1/

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner properly

terminated RespondentÓs employment as a deputy sheriff for

engaging in conduct that violated General Order 3 - 1.1, Rule a nd

Regulation 5.15, governing the custody of arrestees and

prisoners.

PRELIMINARY STATEMENT

On January 16, 2015, Petitioner, the Pinellas County

SheriffÓs Office (Petitioner or PCSO), determined that

Respondent, Raymond Ferrio, engaged in prohibited conduc t that

violated PetitionerÓs General Order 3 - 1.1, Rule and Regulation

5.15, Custody of Arrestees/Prisoners. On January 20, 2015,

Respondent was notified that as a result of the determination,

his employment as a PCSO deputy sheriff was terminated.

Respon dent timely filed a notice of appeal to contest the

termination, and Petitioner referred the matter to DOAH to

conduct an administrative hearing.

With the partiesÓ input, the hearing was originally set for

May 6, 2015, by video teleconference between St. P etersburg and

Tallahassee, Florida. In March 2015, RespondentÓs original

counsel sought and was granted leave to withdraw. On April 20,

2015, Ms. Hawkins filed a N otice of A ppearance for Respondent.

On April 23, 2015, the parties filed a joint motion fo r

continuance, which was granted, and the hearing was rescheduled

for July 22, 2015.

A variety of motions were filed in the two weeks before the

hearing; the motions and their disposition are reflected on the

docket. The parties filed a J oint P re - H earing S tipulation

setting forth several admitted facts and agreed issues of law.

The stipulations are incorporated below to the extent relevant.

At the hearing, Petitioner presented the testimony of

Sheriff Bob Gualtieri, the Pinellas County Sheriff; Paula Roge rs,

a medication nurse at the Pinellas County Jail; and Respondent.

Respondent presented additional testimony on his own behalf.

Respondent did not call any other witnesses.

The parties offered Joint Exhibits 1 through 16, which were

admitted in evidenc e. In addition, during the hearing, the

parties requested leave to keep the record open to receive as

Joint Exhibit 17 a compact disc (CD) containing the entire

investigative file, to be transmitted post - hearing by Petitioner.

The post - hearing transmitta l was allowed, and Joint Exhibit 17

was admitted for the limited purpose of documenting what was

considered by Petitioner in making the decision to terminate

RespondentÓs employment. 2/ Neither party offered any exhibits

besides the 17 joint exhibits.

The hearing Transcript was filed on August 19, 2015. By

agreement at the end of the hearing, the deadline to file

proposed recommended orders (PROs) was set for September 3, 2015.

The parties timely filed their PROs, which have been considered

in preparing t his Recommended Order.

On September 4, 2015, an unsigned two - page letter was

received by DOAH. In the first paragraph, the representation was

made that the letter was written and submitted by RespondentÓs

spouse. The undersigned stopped reading after the first

paragraph, on the assumption that the letter was a prohibited

communication regarding the merits of the case. A Notice of

Ex - Parte Communication was issued on September 9, 2015, apprising

the parties of the prohibited ex - parte communication and pla cing

the letter on the record (but not in the evidentiary record) of

this proceeding, as required. See § 120.66, Fla. Stat. (2015). 3/

Both the fact that the letter was submitted and its unread

contents have been disregarded.

FINDING S OF FACT

Admitted Fac ts

1. Bob Gualtieri is the duly - appointed Sheriff of Pinellas

County, Florida.

2. Sheriff Gualtieri is in command of the operations of

PCSO.

3. Sheriff GualtieriÓs responsibilities include providing

law enforcement services within Pinellas County.

4. S heriff Gualtieri is authorized to impose discipline, in

accordance with the Civil Service Act, on PCSO members and

employees who are found to violate PCSO rules or regulations.

5. At all times pertinent to this case, Respondent was

employed by PCSO as a d eputy sheriff. At the time of his

termination, Respondent had been employed by PCSO for

approximately 14 years.

6. As a deputy sheriff, Respondent was charged with the

responsibility of complying with all PCSO rules, regulations,

general orders, and sta ndard operating procedures.

7. PCSO General Orders require that PCSO Ðmembers shall use

only that degree of force necessary to perform official duties.

The member shall not strike or use physical force against a

person except when necessary in self - defen se, in defense of

another, to overcome physical resistance to arrest, to take an

individual into protective custody, or to prevent escape of an

arrested person.Ñ PSCO General Order 13 - 3.1(A).

8. Respondent use d force on an inmate at the Pinellas

County Jail on October 1, 2014.

9. A complaint of misconduct was filed against Respondent

on or about October 6, 2014. The complaint alleged that on

October 1, 2014, Respondent violated General Order 3 - 1.1, Rule

and Regulation 5.15, pertaining to the custody o f

arrestees/prisoners.

10. An investigation was conducted by PetitionerÓs

Administrative Investigations Division. The investigation record

was provided to PetitionerÓs Administrative Review Board, which

considered the complaint of misconduct and determin ed that

RespondentÓs use of force on October 1, 2014, constituted a

violation of General Order 3 - 1.1, Rule and Regulation 5.15.

11. Pursuant to PCSO General Orders, 50 points were

assigned to the sustained violation found by the Administrative

Review Boar d.

12. Respondent had 30 carryover points from prior

discipline.

13. Pursuant to PCSO General Orders, the 80 - point total

reverts to 75 points, for which the authorized discipline ranges

from a ten - day suspension to and including termination of

employment .

14. Sheriff Gualtieri terminated RespondentÓs employment

with PCSO.

Additional Facts Found

15. The central dispute to be resolved is whether

RespondentÓs use of force on October 1, 2014, was necessary and

not excessive, as Respondent contends, or was unnecessary and

excessive, as Petitioner contends.

16. On the day in question, Respondent was working as a

deputy sheriff in the healthcare division of the Pinellas County

Jail. He was stationed at the duty desk located between two

ÐpodsÑ -- open housing areas for inmates.

17. At the doorway to one of the pods, a medication nurse

was performing Ðmed pass,Ñ i.e., she was passing out medications

to inmates from a medication cart. A deputy -- not Respondent --

stood in the pod doorway next to the nurse, to sup ervise and

provide security. Inside the pod, near the doorway, a few

inmates waited in line for their medication.

18. The deputy supervising med pass, Deputy Pettiford, was

also calling the names of some of the inmates in the pod for

Ðsick call,Ñ meanin g the inmates were to be taken from the pod to

the healthcare clinic.

19. One of the inmates waiting in the med pass line whose

name was called for the clinic was Eugene Borkowski, a sickly -

looking elderly man in a wheelchair. At the time, he was 63

yea rs old, but he looked more frail and older than someone that

age. He had ParkinsonÓs disease. He had been housed in the

healthcare division for months, and had never caused a problem or

been involved in a use of force by staff.

20. When Mr. BorkowskiÓs name was called for sick call, he

refused to go. At first, he ignored Deputy Pettiford when she

called his name. The deputy called his name a few more times,

and he responded verbally, saying, and then yelling, with a

sprinkling of profanities, that he was not going to go and that

he would have to be dragged down there. Mr. BorkowskiÓs behavior

was verbal only; he remained in place in his wheelchair in line

to receive his medication. By all appearances from the video

evidence captured on two security c ameras, Mr. BorkowskiÓs verbal

outbursts were unremarkable, in that several inmates milling

about the pod continued to go about their business, and nursing

staff continued to administer medications, seemingly undisturbed.

21. Without anyone asking for hi s assistance, Respondent

took it upon himself to leave the desk area outside of the pod,

enter the pod, and address Mr. Borkowski. 4/

22. The video evidence shows that in a matter of seconds,

Respondent entered the pod, walked up to Mr. Borkowski in his

w heelchair, slowed down slightly at the side of the wheelchair

(appearing to be stepping around something on the floor), and

continued seamlessly around the wheelchair to stand behind it,

grab the handles, and start pushing the wheelchair towards the

pod do orway.

23. Mr. Borkowski put his feet on the floor to stop the

forward movement of the wheelchair. When he did so, he rose

slightly to a partial standing position for a fraction of a

second, then immediately returned to a seated position.

When Mr. Borko wski braced and tensed in this manner, he had his

back to Respondent; Respondent stood behind the wheelchair and

Mr. Borkowski faced forward. He did not turn around towards

Respondent, even in part.

24. Respondent then moved to the right side of the

whe elchair, placing his left hand on Mr. BorkowskiÓs back.

RespondentÓs left arm rose up Mr. BorkowskiÓs back, and when it

reached above the shoulder to the neck area, RespondentÓs left

arm wrapped around Mr. BorkowskiÓs neck, controlling his neck and

head. Respondent admitted that his arm was ÐprobablyÑ underneath

Mr. BorkowskiÓs chin. (Tr. 140). Then, in rather startling

violent fashion, Respondent lifted Mr. Borkowski up from his

wheelchair seat by his neck and head and slammed him face down to

the floo r with enough force to break Mr. BorkowskiÓs dentures

into pieces and topple the wheelchair. The wheelchair landed

upended near the pod doorway. Respondent pinned a flattened

Mr. Borkowski to the floor, with RespondentÓs left knee pressing

on the inmateÓ s back.

25. There was some evidence that after Respondent moved to

the right side of the wheelchair, either just before or at the

same time as Respondent began his takedown, a small paper or

plastic cup that had been in Mr. BorkowskiÓs right hand was

dis lodged, either going up in the air or up and backward. The

cup may have had a small amount of water in it, or it may have

been empty. Respondent testified that Mr. Borkowski tried to

throw his cup at Respondent. However, if the cup was thrown on

purpose , it was not thrown in the direction of Respondent, who

was next to -- not behind -- the inmate; neither the cup nor any

contents that may have been in the cup came into contact with

Respondent. The evidence does not support a finding that

Mr. Borkowski aggr essively attacked Respondent by throwing a cup

of water at Respondent. Instead, it is more plausible that: the

cup was dislodged when Respondent began the takedown; this inmate

with ParkinsonÓs disease involuntarily lost his grip; or the

inmate intended to throw the cup as a distraction, not aimed at

Respondent or anyone else.

26. Respondent also offered, as justification for the

takedown, his testimony that when he moved to the right of the

wheelchair, he felt something that he perceived to be

Mr. Bor kowskiÓs hand on RespondentÓs left side, where

R espondentÓs Taser and radio were. Here too, however,

RespondentÓs statements were inconsistent. In the incident

report that he was required to complete, Respondent stated that

Mr. Borkowski grabbed Responde ntÓs shirt. When questioned,

however, Respondent said that his statement had been inaccurate.

Respondent conceded that Mr. Borkowski did not actually grab

Respondent or RespondentÓs shirt . But as to what actually

happened, Responden t offered a variety o f different statements :

it was an attempted grab, not really a grab at all; Respondent

perceived something like a grab with an arm, hand, or something;

or Respondent just had a perception of something. Ultimately,

Respondent admitted that what he perceive d he felt may have been

nothing more than the side of the wheelchair.

27. Respondent acknowledged that when he perceived whatever

he perceived, he did not actually see Mr. Borkowski move a hand

or arm towards Respondent. The video evidence appears to co nfirm

that there was no such movement.

28. After the takedown, not surprisingly, the inmate

struggled with Respondent on top of him. Respondent secured one

of the inmateÓs hands fairly quickly, but then struggled to

secure the inmateÓs other hand behind his back to cuff him. The

videos show Respondent on top of the inmate, using both upper and

lower limbs to deliver blows to the inmateÓs side and up around

his head. While it is impossible to discern from the video

whether Respondent delivered full clos ed - fisted punches, it does

appear that Respondent delivered blows of some kind, pulling both

arms and right leg back, then forcefully moving them forward to

connect with not only the inmateÓs body, but also the inmateÓs

head. Whether the blows were admini stered with RespondentÓs

knees, fists, or both cannot be determined, but the difference is

inconsequential. Respondent acknowledges that he delivered at

least four knee strikes to Mr. Borkowski for pain compliance,

although Respondent said that the strike s were delivered to the

inmateÓs torso. Respondent testified that he did not remember

whether he punched Mr. Borkowski, although he did admit that it

was possible that he punched the inmate.

29. After the takedown, while Respondent was on the floor

stru ggling with Mr. Borkowski, Deputy Pettiford came into the pod

with her Taser. After she attempted ineffectively to deliver a

drive - strike to the inmate, Respondent grabbed her arm with the

Taser and brought the Taser into contact with Mr. Borkowski.

3 0 . As a result of the takedown, Mr. Borkowski suffered

cuts and bruising to the head and face, and his dentures were

broken in pieces.

3 1 . Respondent denied that he anticipated a use of force

when he left his desk to go into the pod, but he offered

confl icting versions to explain what he intended to do when he

left his desk to go into the pod: during his investigation,

Respondent initially said that Mr. Borkowski could not refuse to

go to the clinic, so he went in to take Mr. Borkowski out of the

pod to speak with Corporal Bolle, who was nearby in the pod on

the other side of the officerÓs station. Later, after

acknowledging that Mr. Borkowski had the right to refuse to go to

the clinic, Respondent said that he went into the pod only

planning to speak wi th Mr. Borkowski to try to convince him to

stop yelling. Finally, in a blend of the two versions,

Respondent said that he went into the pod only with the intent of

speaking with Mr. Borkowski to calm him down, but that

Mr. BorkowskiÓs behavior escalated t o aggression and at that

point Respondent decided to remove the inmate from the pod out of

concern for staff and other inmates.

3 2 . The evidence does not support RespondentÓs explanation

that he only intended to talk to Mr. Borkowski to calm him down.

T he video display shows that hardly more than a second passed

from the time Respondent entered the pod and approached

Mr. Borkowski to when Respondent moved to the back of the

wheelchair and began pushing Mr. Borkowski towards the doorway to

exit the pod. If a calming talk was the objective, Respondent

gave up pretty quickly. Apparently, Respondent did not consider

or deliver the one calming line that would have addressed the

inmateÓs problem -- telling him that if he did not want to go to

the health clinic, he did not have to go to the health clinic.

3 3 . As Respondent admitted, inmates have the right to

refuse to go to the health clinic. Sheriff Gualtieri

convincingly explained the significance of that right here:

Even if youÓre in jail, you have rights.

Even if youÓre in jail, you donÓt have to eat

the food. You donÓt have to go see the

doctor. There are a lot of things you donÓt

have to do. And if you donÓt want to go see

the doctor, you shouldnÓt be forced to go see

the doctor. I mean, itÓs real c lear. The

healthcare practitioner can come see him.

But engaging to that extent all over the fact

that the man didnÓt want to go to sick call,

that is just so wrong. (Tr. 52).

3 4 . The evidence also does not support RespondentÓs

explanation that he on ly made the decision to remove the inmate

from the pod when the inmateÓs behavior escalated. Instead,

until Respondent attempted to push the wheelchair towards the pod

exit, Respondent admitted that the inmate was not irate and that

his behavior had not e scalated beyond mere verbal resistance to

being taken to the clinic. The video evidence confirms that in

the scant seconds between RespondentÓs entry into the pod and

when Respondent moved behind the wheelchair and began pushing the

inmate towards the doo r, Mr. Borkowski displayed no sign of

movements or gestures that would indicate escalating behavior.

3 5 . Finally, with regard to RespondentÓs testimony that his

plan was not to force Mr. Borkowski to go to the clinic, but

rather, to simply remove Mr. Bo rkowski from the pod and take him

to talk to a supervisor, Respondent admitted that he never shared

this plan with Mr. Borkowski; he did not tell Mr. Borkowski that

Respondent was not taking him to the clinic. When asked if the

inmate may have thought tha t Respondent was trying to take him to

sick call when the inmate had just said he was not going,

Respondent conceded: ÐHe could have perceived that. He could

have perceived that, yes.Ñ (Jt. Exh. 5 at 111). Not only is

that possible, but it is the most likely impression given by

RespondentÓs failure to tell the inmate that he was not being

forced to go to the clinic.

3 6 . A determination of whether a use of force is necessary

requires due consideration of the totality of circumstances,

including subject/ officer factors such as the relative ages,

size, and physical condition of the subject and the officer.

Likewise, a determination of whether the degree of force is

reasonable or excessive must be made with due consideration of

the totality of circumstance s. Sheriff Gualtieri explained how

he viewed the circumstances in making the determination that

RespondentÓs use of force was prohibited conduct because it was

unnecessary and excessive:

A big factor for me was, what was the nature

of the initial point of contact between

Deputy Ferrio and the inmate? We have a 63 -

year - old male in a wheelchair who had

ParkinsonÓs who was disabled, who had signed

up to go to sick call. We donÓt make people

go to sick call. If somebody wants to go to

sick call, they go to sick call. He didnÓt

want to go. If there was an issue or a

problem with him going, donÓt make him go or

go get with medical and make a determination

as to whatÓs appropriate or how to do it.

What was striking to me was the reason for

the contact. Thi s wasnÓt an inmate refusing

to come out of a cell or we needed to do a

cell extraction. He wasnÓt threatening

anybody. He was sitting in his wheelchair

minding his own business and just didnÓt want

to go to sick call. At that point, Deputy

Ferrio tried to force him to go to sick call

and that is where the incident went very bad

from the beginning because he shouldnÓt have

been forced to go to sick call at all.

Once he did that, the inmate put his feet on

the floor. He braced a little bit by putting

his feet on the floor. Okay, so what? The

inmate put his feet on the floor. The next

thing that really happens of significance is

Deputy Ferrio grabbing this 63 - year - old guy

sitting in a wheelchair by the neck and

slamming him on the ground with such force

that it causes the guyÓs dentures to break.

He slams his face down on the ground and then

pummels him with his knees and fists. This

is all over this guy, this inmate, who didnÓt

want to go to sick call.

There was some discussion about this. We

discus sed it during the decision - making

process. It was discussed during the board

about this alleged water throwing. Well,

thereÓs no water throwing[. ] [ And] this

alleged touching. Even if they occurred,

they are nominal events. This isnÓt that

some guy to ok a bottle of water and threw it

in his face or caused him to be

incapacitated. This is a 63 - year - old frail

guy with ParkinsonÓs disease whoÓs sitting in

a wheelchair who at the most, and I donÓt

think it happened from watching it, is may

have turned his cup maybe towards Deputy

Ferrio or something along those lines, but

there was no justification. No justification

at all for using that amount of force to take

the guy by the head and neck, slam him on the

ground to the point where his dentures break

and then pummel him with his hands and fists.

That is what I considered in making a

decision that it was excessive force under

the circumstances. I gave some consideration

to Deputy FerrioÓs statements in this case.

But even if there was some justificatio n to

do something, it wasnÓt slamming the guy to

the ground and kicking and punching him.

Maybe tilting the wheelchair back and pulling

him out. Maybe telling him not to brace with

his legs. Maybe something along those lines,

but not what he did.

(Tr. 42 - 45).

3 7 . Sheriff GualtieriÓs assessment of RespondentÓs use of

force in the context of the totality of the circumstances in

which that use of force occurred is fully supported by the record

evidence and the findings made above, is reasonable, and is

c redited.

3 8 . RespondentÓs use of force was not justified, and was

not a reasonable response under the totality of circumstances.

This finding is not a reflection of hindsight examination of the

circumstances. Instead, the undersigned finds that a r easo nabl e

officer on the scene on October 1, 2014, would not have responded

to the circumstances the way Respondent did .

3 9 . RespondentÓs changing description of the events at

issue and shifting rationales for his actions call into question

RespondentÓs cred ibility. RespondentÓs evolving story suggests

that it was Respondent who engaged in hindsight evaluation of his

own actions, and, finding them wanting, revised the details in an

effort to paint a more reasonable picture.

40 . What cannot be changed is th e vivid picture of what

transpired, recorded by two security cameras. While the two

views do not perfectly capture every detail, they provide a clear

visual record of what actually transpired that day, with images

that cannot be denied or changed over tim e. The picture

portrayed is more in keeping with RespondentÓs admissions to the

Administrative Review Board that he probably should not have gone

into the pod and used force on the inmate (Jt. Exh. 6 at 148);

and that even after the inmate braced and tens ed, he did not have

to rip him out of the wheelchair and take him down, but did so

acting in Ð[t]he heat of the moment.Ñ (Jt. Exh. 6 at 149).

4 1 . It is found, as a matter of ultimate fact, that

RespondentÓs use of force on October 1, 2014, was not nec essary

to accomplish a legitimate law enforcement task, was not

justified by the totality of circumstances presented that day,

and was excessive in degree, in violation of General Order 3 - 1.1,

Rule and Regulation 5.15.

4 2 . Pursuant to General Order 3 - 1, a violation of Rule 5.15

is a level five violation -- the most serious level under the PCSO

disciplinary system. According to the point scale in General

Order 10 - 2, 50 points were properly assigned for this violation.

The discipline provided for this singl e 50 - point violation ranges

from a five - day suspension to termination.

4 3 . However, Respondent had a significant prior

disciplinary history, with 30 carryover points from previous

discipline. In accordance with the concept of progressive

discipline buil t into PetitionerÓs disciplinary system, the

carryover points increased the authorized d iscipline to a range

of from a ten - day suspension to termination. See General Order

10 - 2.6.

4 4 . Under PetitionerÓs disciplinary system, prior

counseling is another f actor relevant to the progressive

discipline process, although counseling does not count toward the

progressive point total. The evidence established that

Respondent had been counseled previously about uses of force , in

contexts bearing some similarities to this case. Respondent

acknowledged that he previously was counseled by his superiors

and warned about grabbing an inmate by the neck to execute a

takedown. The inmate, Mr. Strempel, was also elderly and was in

the same healthcare unit as Mr. Borkowski . Respondent was also

counseled for a separate incident involving an inmate,

Mr. Griffith, who refused to go to Advisory Court, which was the

inmateÓs right (just as it was Mr. BorkowskiÓs right to refuse to

go to sick call). Respondent forced the inmat e to go, engaging

in a use of force to cuff the inmate. When counseled, Respondent

told his superiors that he did not know the inmate could refuse.

4 5 . The evidence established that the disciplinary action

against Respondent is consistent with the disci plinary action

taken against other members who committed the same or similar

conduct. Petitioner offered the unrebutted testimony of Sheriff

Gualtieri that he has always imposed termination as the

disciplinary consequence for other members, after it was

s ubstantiated that they engaged in the same sort of prohibited

conducted as Respondent.

4 6 . Respondent did not offer any evidence to the contrary,

to refute the SheriffÓs testimony that he has consistently

applied discipline in all cases similar to Respon dentÓs case.

Indeed, the SheriffÓs testimony was actually corroborated by

Respondent, who testified that he is not aware of any other PSCO

member who was found to have committed the same or similar

conduct and who received a lesser form of discipline than

Respondent.

4 7 . The Sheriff reasonably exercised his authority, within

the disciplinary range authorized by General Order 10 - 2 and

consistent with the discipline imposed in similar cases , to

terminate RespondentÓs employment.

CONCLUSIONS OF LAW

4 8 . DOA H has jurisdiction over the parties and subject

matter of this proceeding. § 120.65( 6 ), Fla. Stat.; Ch. 89 - 404,

Laws of Fla., as amended (the Civil Service Act).

4 9 . This proceeding is governed by the Civil Service Act

and implementing procedural rules authorized by the Pinellas

County SheriffÓs Civil Service Board, filed by Petitioner at the

outset of this proceeding. When the Civil Service Act confers

the right to an appeal hearing, the Civil Service Board can elect

to hear the appeal itself or refer the case to DOAH to conduct

the appeal hearing, Ðaccording to the rules followed by DOAH in

accordance with Florida Statutes.Ñ Rules 4, 5, Civil Service

Board Rules of Procedure. When DOAH conducts the appeal hearing,

the Civil Service Board is the age ncy head that makes the final

determination. Rule 7, Civil Service Board Rules of Procedure.

50 . Under the Civil Service Act, Respondent was entitled to

appeal PetitionerÓs decision to terminate his employment, and he

did so by timely filing a notice of appeal.

5 1 . The issues for determination, pursuant to the Civil

Service Act, are whether Respondent engaged in prohibited conduct

and, if so, whether the action taken by Petitioner -- termination

of RespondentÓs employment -- is consistent with action taken

against other members.

5 2 . The Civil Service Act authorizes Petitioner to take

disciplinary action against classified employees, and to adopt

implementing rules and regulations. Pursuant to that authority,

Petitioner adopted General Order 3 - 1, with rul es establishing

standards of conduct that must be followed by employees.

5 3 . General Order 3 - 1 also provides the framework for

disciplinary action based on violations of the prescribed

standards of conduct. Violations are broken down into five

levels , with level five being the most serious. The level five

rules, set forth in General Order 3 - 1.1, include Rule 5.15 at

issue in this proceeding, which provides:

Custody of Arrestees/Prisoners Î Arrestees/

prisoners shall be kept secured and treated

humane ly and shall not be subject to physical

abuse. The use of physical force shall be

restricted to circumstances specified by law

when necessary to accomplish a police task.

5 4 . As the parties stipulated, Petitioner bears the burden

of proving by a prepon derance of the evidence that Respondent

engaged in conduct prohibited by General Order 3 - 1.1, Rule 5.15.

Accord Pinellas Cnty. SheriffÓs Off. v. Richard Stotts , Case No.

13 - 3024 (Fla. DOAH Nov. 12, 2013, PCSO Dec. 12, 2013).

5 5 . Petitioner met its burde n of proving that RespondentÓs

conduct on October 1, 201 4 , violated General Order 3 - 1.1, Rule

and Regulation 5.15. RespondentÓs use of physical force was not

necessary to accomplish a law enforcement task. Instead,

Respondent took it upon himself to inte rcede when a sickly,

elderly inmate in a wheelchair refused to go to sick call, which

was the inmateÓs right. As Respondent admitted (at least at

times), at the point in time when Respondent interceded, the

inmate was not a threat, was not disruptive, and was simply

expressing his strong opposition to being taken out of the

medication line to go to the healthcare clinic. Respondent

entered the pod without being asked and without any apparent

need, grabbed the wheelchair handles and started pushing the

inm ate out of the pod. Had Respondent stayed at his desk outside

the pod, or had Respondent simply approached the inmate to tell

him that he did not have to go to the clinic, there likely would

have been no use of force and no need for use of force.

Respond entÓs encounter with inmate Borkowski was not necessary to

accomplish a legitimate law enforcement task, because the inmate

was entitled to refuse to go to sick call and Respondent was not

authorized to force him to go.

5 6 . Respondent argued that a use o f force became necessary

to respond to the inmateÓs escalated resistance (that began when

Respondent started pushing the inmateÓs wheelchair). This

ignores the standard of conduct that required Respondent to limit

his use of physical force to the degree t hat is necessary. See

General Order 13 - 3.1(A) (Ð In accordance with [PCSO] General

Orders, member s shall use only that degree of force necessary to

perform official duties.Ñ) (emphasis added).

5 7 . While some response by Respondent to the inmateÓs

bracin g and tensing may have been warranted, the physical force

actually used by Respondent was completely out of proportion to

the inmateÓs conduct and went far beyond what was necessary to

accomplish any legitimate law enforcement task. The evidence

establish ed that the degree of force used by Respondent in

lifting the inmate up and out of his wheelchair by his head and

neck and slamming the inmate to the floor with such force as to

shatter the inmateÓs dentures and upend the wheelchair was

unnecessary and exc essive.

5 8 . RespondentÓs use of force was not reasonable under the

totality of circumstances. A reasonable officer on the scene

would not have responded by using the force Respondent used . See

General Order 13 - 3(R) (citing Graham v. Connor , 409 U.S. 38 6, 109

S. Ct. 1865, 1872 , 104 L. Ed. 2d 443 (1989) ) .

5 9 . The evidence also established that the termination of

RespondentÓs employment was reasonable discipline for his

unnecessary, excessive use of force in violation of General Order

3 - 3.1, Rule and Reg ulation 5.15.

60 . As found above, RespondentÓs violation earned 50

points. Thus, termination is authorized as disciplin e for the

violation of rule 5.15 alone. Se e, e.g. , Pinellas Cnty.

SheriffÓs Off. v. Richard Stotts , supra ( termination of a deputy

sh eriff was reasonable discipline b ased on a single substantiated

us e of force incident that violat ed General Order 3 - 3.1, Rule and

Regulation 5.15, to which 50 points were assigned ) .

6 1 . Termination is even more appropriate as disciplin e for

this 50 - point level five v iolation where carryover points from

prior discipline increase the point total to a level in a higher

discipline range category . RespondentÓs 75 point s places him two

discipline range categories higher than the 50 - point category for

which ter mination is authorized. See General Order 10 - 2 at p. 9 .

6 2 . The reasonableness of imposing discipline at the high

end of the authorized disciplin e range is buttressed by the fact

that, in addition to his prior discipline, Respondent previously

was couns eled on two occasions for similar conduct.

6 3 . T he disciplinary action of termination in this case is

consistent with the disciplinary action taken against other

members who committed the same or similar prohibited conduct.

This conclusion is supported by PetitionerÓs precedent. See

Pinellas Cnty. SheriffÓs Off. v. Richard Stotts , supra .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Pinellas County SheriffÓs

Office, enter a final order finding that Respondent, Raymond

Ferrio, engaged in prohibited conduct by violating General Order

3 - 1.1, Rule and Regulation 5.15, and upholding the termination of

RespondentÓs employment.

DONE AND ENTERED this 20th day of October , 2015 , in

Tallahassee, Le on County, Florida.

S

ELIZABETH W. MCARTHUR

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 Administrative Hearings

this 20th day of October , 2015 .

ENDNOTE S

1/ Counsel for Respondent is shown in the appearances at her

address of record, at the firm where she was an associate, as of

the final hearing. Thereafter, she left the firm, but apparently

the files for this case have been retained by the firm and

counsel for Respondent will be given access to them as needed.

When counselÓs departure from her law firm became known (because

she was not at the firm when contacted), counsel for Respondent

was directed to confirm whether she still represented Respondent

and, if so, to comply with Florida Administrative Code Rule 28 -

106.104(5) (requiring counsel to promptly notify DOAH and other

parties of any changes in their contact information by filing a

Notice of Change). Counsel for Respondent immediately responded ,

confirming that she was still RespondentÓs counsel. She filed

and served her new contact information, but requested that the

contact information be redacted before her filing was placed on

the docket. No authority was offered to support the requested

redaction; instead, counsel just characterized her contact

information as personal. However, DOAHÓs procedural rules

require th at counsel representing parties in pending proceedings

file their contact information. Filings in DOAH proceedings are

public records and are not subject to redaction upon request,

unless the request is predicated on an applicable exemption from

the publi c records laws.

2/ Separate from the CD, Respondent transmitted two pages,

identified as pages four and five of an October 16, 2014,

investigative interview of Corporal Chrystal Bolle, which were

left out of the CD. These two pages have been marked as J oint

Exhibit 17 Supplement, and admitted for the same limited purpose

as Joint Exhibit 17.

3/ References to Florida Statutes are to the 2015 codification,

unless otherwise specified.

4/ Respondent gave conflicting statements as to what prompted him

to get up from his desk to go into the pod. One version was that

Deputy Pettiford told him that the inmate refused to go to sick

call, and Respondent simply took it upon himself to go speak to

the inmate. See, e.g. , Jt. Exh. 5 at 35, 38 - 39. The other

versi on was that from the duty desk ten feet away from the pod

doorway, Respondent heard the inmate yelling and screaming so

loudly that Respondent became concerned with the disruption to

the ongoing med pass. (Tr. 165 - 166). The nurse conducting the

med pass corroborated the first version: ÐDeputy Pettiford had

said something to Deputy Ferrio about the patient not going to

clinic or whatever they called him for.Ñ (Tr. 100). The nurse

did not corroborate RespondentÓs other version that the inmate

was yelling and screaming so loudly that he was disrupting the

med pass. Instead, the nurse testified that before Respondent

went into the pod, she was conducting the med pass like she

always did, and she saw Mr. Borkowski sitting in line. Nothing

caught her attent ion during the med pass until later, after

Respondent went into the pod. The first version, corroborated by

the nurse, is found to be more credible.

COPIES FURNISHED:

Paul Grant Rozelle, Esquire

Pinellas County Sheriff's Office

10750 Ulmerton Road

Larg o, Florida 33778

(eServed)

Brandi L. Hawkins, Esquire

Apartment 501

17103 North Bay Road

Sunny Isles Beach, Florida 33160

(eServed)

Michele Wallace, Esquire

Pinellas County Attorney Ós Office

315 Court Street , Sixth Floor

Clearwater, Florida 33756

Br andi L. Hawkins , Esquire

The Coc h ran Firm, South Flor i da

657 South Drive, Suite 304

Miami Springs, Florida 33166

(eServed)

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.