CRIPA Investigation of the New York City Department of Corre

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2013 INCIDENTS

*Inmate I

In January 2013, Inmate I was hit several times in the RNDC school area where there are no security cameras. An officer admitted that he punched Inmate I multiple times in the face and upper body area, but was not subject to any formal disciplinary action.

During his interview with Department investigators, Inmate I stated that the officer was upset because some of Inmate I’s friends were playing with their food in the mess hall. Once the inmates were back in the classroom, the officer ordered Inmate I and another inmate to stand up and face the wall. Inmate I claimed that at some point he laughed and the officer responded by punching Inmate I with a closed fist about ten times to the head and face. Inmate I stated that he was able to block some of the punches, but then an unknown officer grabbed Inmate I, pulled him to the floor, and then took him into the bathroom. The description Inmate I provided to our consultant is substantially similar to the account he provided to the Department investigators, except he told our consultant that another officer was also involved in punching him. His account to the Legal Aid Society was substantially similar to the description of the incident he provided to our consultant.

According to an inmate witness, after Inmate I refused to comply with the officer’s direction to put his hands on his head, the officer punched Inmate I one time on the side of his mouth causing Inmate I to fall to the floor. The inmate further stated that the officer then punched Inmate I two times in the chest area and kicked him four times to the rib area. The inmate claimed that the officer continued to hit Inmate I while another officer held Inmate I’s arms behind his back.

The officer stated that he punched Inmate I in the face and upper body area only after Inmate I hit him in the face. According to the officer, after bringing Inmate I down to the floor, he hit Inmate I again in response to Inmate I continuing to punch the officer. The officer claimed that he gave Inmate I several verbal orders to cease his aggression before Inmate I finally complied. The officer later amended his written report to add that he could not use chemical agents to subdue Inmate I because of the close proximity between himself and Inmate I.

Although other correction officers were in the vicinity at the time of the incident, none admitted to witnessing any use of force against Inmate I.

Inmate I sustained contusions on his lip and scalp consistent with being hit in the face. The officer suffered a contusion on his right hand, but no injuries to his face, which is inconsistent with the officer’s claim that Inmate I hit him in the face.

The ID concurred with the facility investigation’s determination that the use of force “was appropriate and necessary” for the officer to defend himself. The ID did not conduct an independent investigation, even though its report acknowledges that “[i]t is undisputable that [the officer] punched Inmate [I] in the facial area multiple times.” The facility recommended that the officer attend use of force re-training and subjected him to “a corrective interview” for violating the rule to avoid striking inmates in the head and facial areas when possible, but no formal disciplinary action was taken against the officer. Inmate I was charged in criminal court (charges that were ultimately dismissed) and received 90 days of punitive segregation as a result of this incident.

*Inmate J

In January 2013, Inmate J, a mentally ill inmate housed in MHAUII at the time, extended his forearm through the small cuffing port of his cell to get staff’s attention because he wanted a shower and to use the telephone. A Captain, accompanied by another officer, approached the inmate’s cell and, within seconds, forcibly closed the rear slide door of the cuff port on Inmate J’s left arm and walked away. The incident was captured on video.

After the incident, Inmate J told clinic staff that the Captain approached his cell and “slammed the slot forcefully” on his arm without any warning, resulting in “shocking pain . . . like I got hit with a hammer or something.” In his written statement, the Captain stated that he responded after being told that Inmate J “was holding the cuff” and gave Inmate J “several direct orders to remove his hand” before closing the slot. The Captain claimed that as he began to close the slot, Inmate J “simultaneously removed his hand swiftly… causing him to brush his arm against the closing slot.” The officer who accompanied the Captain reported that the Captain asked Inmate J “numerous times” to remove his hand before closing the port. In contrast to the Captain, the officer claimed that the injury occurred because Inmate J “spontaneously stuck his arm back through the cuffing port at the same time” as the port was closed.

The video surveillance contradicts the written statements from both the Captain and the officer. The Captain slammed the slide door of the cuff port on Inmate J’s arm within approximately ten seconds of arriving at Inmate J’s cell, making it highly unlikely that he had repeatedly ordered Inmate J to remove his hand before inflicting the injury as the Captain and the officer claim. The video also shows the Captain closing the door while Inmate J’s arm was still extended, further contradicting the Captain’s account. When interviewed by our consultant, Inmate J stated that the Captain threw out the written statement he provided after the incident.

The Captain who investigated the matter and the Tour Commander concluded that the force was inappropriate but not excessive, and the GRVC Warden concurred. This finding demonstrates a fundamental and concerning misunderstanding of the definition of excessive force. Since it was not necessary to use force under these circumstances, any force used was excessive. Moreover, neither the Tour Commander nor the investigating Captain noted that both staff members had submitted false reports, or the inconsistencies between their reports.

The Tour Commander recommended command discipline for the Captain involved in the incident for violation of the Use of Force Directive, and the Warden subsequently recommended a 4-day penalty. This was at least the third time that the Captain had been subject to disciplinary action in connection with a use of force incident.

The ID reviewed the facility’s investigation and found that it was “satisfactory” and no independent investigation was necessary.

Inmate J sustained trauma to his upper left arm, swelling, and a mild decrease in motion. The Tour Commander recommended that Inmate J receive “the maximum punitive segregation time allowed.”

Inmate K

In January 2013, an officer hit Inmate K in the school area where there are no security cameras. Inmate K told medical staff that he was “beaten” by the officer. Despite the fact that Inmate K had multiple visible injuries on his face and neck, the officer denied striking Inmate K. Based on the extent of the injuries suffered by Inmate K, the Captain assigned to investigate the incident found that the officer had falsified his report and that the use of force was excessive.

The officer told investigators he approached Inmate K and asked him to hand over playing cards, and when Inmate K refused to do so, the officer instructed Inmate K to go against the wall. According to the officer, Inmate K attempted to grab the officer’s shirt and the officer used a “swiping motion” to release Inmate K’s grip on his shirt and to gain distance. Inmate K then kneeled down and placed his hands on his head. The officer initially indicated in his report that he had used an “upper body control hold” to subdue Inmate K, but then amended his report to say that he had not used such a hold. None of the inmates or correction officers in the area at the time of the incident admitted to witnessing any use of force.

Inmate K sustained multiple bruises to his forehead, neck and back, as well as pain in his wrist. The officer had swelling and bruising on his right thumb.

The Captain assigned to investigate the incident concluded that the use of force was “excessive and not proportionate to the threat presented.” The Captain further found that the injuries suffered by Inmate K were not consistent with staff reports and that the officer had “falsified his use of force report in an attempt to downplay” the incident. Despite the Captain’s recommendation that the ID investigate the matter, there is no record that such an investigation took place. There is also no record of the officer being formally disciplined or subjected to any corrective action for either the use of excessive force or the submission of a false report.

Inmate K received 60 days of punitive segregation as a result of the incident even though there was evidence that the charges against Inmate K were based, at least in part, on a false report by the officer.

Inmate L

In January 2013, after reportedly being disruptive while waiting to enter the RNDC dining hall, Inmate L (who was on suicide watch at the time) was taken down by a Captain and punched repeatedly on his head and upper torso while he lay face down on the ground covering his head with his hands. Inmate L sustained multiple bruises and abrasions to his shoulders, arms, back, and neck.

Officers reported that Inmate L became disruptive while inmates lined up to enter the dining hall and did not comply with orders to cease his behavior. According to the Tour Commander’s report, when Inmate L refused to comply with the Captain’s order to place his hands on the wall, the Captain “guided [the] subject to the wall then took him to the ground.” The Captain proceeded to punch Inmate L “twice in the head and upper torso,” while the inmate was face down on the ground with his hands over his head, as confirmed by video surveillance. The Tour Commander concluded that the Captain’s use of force was “excessive and avoidable” since Inmate L presented no threat while on the ground. Although the Tour Commander recommended command discipline, the Department did not provide any records showing that the Captain was formally disciplined for his use of excessive force. Inmate L, however, was infracted for disorderly conduct.

Other evidence suggests that the level of force utilized was more severe than the facility found. Inmate L told investigators that the Captain “punched [him] everywhere.” In addition, according to medical records, Inmate L sustained bruises to his left and right shoulders, left and right lower arms, chest area, neck, back, and a finger on his right hand, as well as an abrasion to his right elbow. It is unlikely that all of these injuries would result from just two punches. The Captain sustained mild swelling of his right wrist, possibly due to the punches he threw.

This is also another instance when staff submitted clearly false reports. In his initial written statement after the incident, the Captain falsely claimed that Inmate L “continued to resist by flailing his arm and moving his body about in [an] attempt to avoid being cuffed.” This was contradicted by the video surveillance reviewed. In a supplemental report prepared almost two weeks after the incident, the Captain acknowledged that the inmate “placed his hands by his head” while on the ground and explained that he had not mentioned that in his initial report “[d]ue to the inmates [sic] odd behavior and the adrenaline flowing.” Moreover, only one of the many staff members who submitted written reports acknowledged that the Captain punched Inmate L, and that officer stated that the blows were necessary due to Inmate L’s “apparent assault” and “constant violent resistance.” Notwithstanding these false reports, the clearly excessive force applied, and Inmate L’s extensive injuries, this matter was not referred to the ID for a more extensive investigation.

Inmates M, N, O, P

In August 2013, four RNDC inmates were seriously injured during a brutal use of force incident involving multiple officers in a trailer that contains classrooms. The incident was referred to the ID for investigation, but we did not receive the ID file because the investigation was still pending at the time this letter was prepared. The four inmates each provided substantially consistent accounts of the incident to the Legal Aid Society and a senior DOHMH official. The inmates all sustained serious injuries, including fractures. There is no video of this incident because there are no cameras in the RNDC school area.

The following is a general summary of the accounts the four inmates provided: The inmates and one officer were working in the trailer and got into a verbal confrontation. The officer grabbed Inmate M by his neck, slammed his face into a concrete wall, and then began to repeatedly punch him. The officer reported that he had been jumped and called for backup. Soon thereafter, several other officers, including probe team members, arrived and brutally assaulted the four inmates, punching and kicking them and striking them with radios, batons, and broomsticks. This continued for several minutes after the inmates had been subdued and handcuffed. The probe team then took the inmates to holding pens in the clinic intake area where they were handcuffed and beaten again by several DOC Gang Intelligence Unit members, who repeatedly punched and kicked them while they were handcuffed and slammed them against cell walls. Two of the inmates reported that they thought they had lost consciousness or blacked out for some period of time.

According to written staff reports, the inmates instigated the confrontation by attacking the officer who was working in the trailer. Staff claimed that Inmate M pulled that officer off a ladder and started to kick and punch him, and then the other inmates joined in the assault, beating the officer with broken mop sticks and a metal rod. According to staff, when other officers arrived to provide assistance, the inmates attacked them as well and fights ensued, with officers acting in self-defense. Several officers stated that they punched the inmates in the upper torso and facial area to protect themselves. According to the officers, the probe team eventually arrived and took the inmates away in restraints. We did not receive any statements from the involved probe team officers or the Gang Intelligence Unit officers.

Several officers utilized similar phrasing and language in their written use of force reports, suggesting that the officers may have colluded with each other to ensure their reports were consistent. For instance, one officer wrote that an inmate was “able to break this writer’s hold and subsequently turned his aggression toward this writer.” Another officer noted that an inmate “broke from the control hold and then directed his aggression to this writer.” A third officer wrote that an inmate “was able to break this writer’s control hold turning his aggression towards this writer.”

The inmates sustained a wide array of serious injuries, including a broken nose, a perforated eardrum, head trauma, chest contusions, and other head and facial injuries. Although clinic medical staff quickly determined that the inmates all needed hospital care, it took an unreasonably long time to secure escorts to transfer the inmates from the jail. In an email shortly after the incident, a senior DOHMH official stated that “this type of delay could have proved fatal” and requested an investigation of why it took so long to take the inmates to the hospital.

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Notes:

1 When we use the term “adolescents” or “adolescent inmates” in this letter, we are referring to male inmates between the ages of 16 and 18 housed at Rikers.

2 We did not undertake a review of the adequacy of medical or mental health services provided to adolescent inmates at Rikers. Our discussions with DOHMH staff and review of DOHMH records were purely in support of our investigation into staff use of force, inmate-on-inmate violence, and the use of punitive segregation. However, our investigation nonetheless raises serious concerns about the quality of mental health services at Rikers; this critical issue, which warrants considerable attention and potentially raises concerns both under CRIPA and the Americans with Disabilities Act (“ADA”), may be addressed in a future investigation by this Office.

3 For various reasons, including because DOC was unable to locate some videos, and because DOC did not provide us with open DOC Investigation Division and staff disciplinary files, we did not receive all relevant records for these sample incidents.

4 After City attorneys expressed their desire to sit in on these interviews, we reached an agreement with the City whereby our consultant interviewed inmates one-on-one, outside both our presence and the presence of City attorneys, to encourage full and candid discussion between the inmates and our consultant. We participated, however, in the interview of one adolescent inmate—Inmate D—who was involved in a use of force that is highlighted in the Appendix to this report.

5 The Department is currently the subject of a class action lawsuit brought by current and former inmates at Rikers alleging system-wide, unconstitutional use of force by staff against inmates. See Nunez v. City of New York, 11 Civ. 5845 (LTS) (THK).

6 See Department of Correction website, http://www.nyc.gov/html/doc/html/about/about_doc.shtml.

7 Additional facilities are located in Brooklyn, Manhattan, Queens, and a floating jail barge in the Bronx. See http://www.nyc.gov/html/doc/html/about/ ... view.shtml.

8 North Carolina is the other state.

9 http://www.nyc.gov/html/doc/downloads/p ... ESCENT.pdf. These figures include adolescent females, which represent approximately 10% of all adolescent admissions. The fiscal year runs from July through June of the following year.

10 These use of force figures exclude “use of force allegations,” which refer to instances when sources other than DOC personnel report that force was used on an inmate. There were 56 use of force allegations at RNDC or EMTC in FY 2013 and 45 in FY 2012.

11 From April 2012 through April 2013, adolescent fights resulted in 430 visible inmate injuries, according to DOHMH data.

12 The internal report was not issued until 16 months after then-Commissioner Schriro directed the audit. RNDC staff’s failure to accurately and consistently document inmate fights also was noted during a prior security audit in early 2011, but little was done to address the problem.

13 RNDC inmates suffered 22 jaw fractures during the first 5 ½ months of 2012 alone.

14 Our investigation did not focus on incidents involving alleged sexual assault. However, the limited information we obtained raises a concern that DOC may be under-reporting sexual assault allegations. In calendar years 2011 and 2012, DOC reported a total of only seven incidents of alleged sexual assault where the alleged victim was an adolescent. (Five of these incidents were determined to be unfounded or unsubstantiated and the other two investigations were pending at the time DOC provided the data.) This number seems extremely small given the size of the adolescent inmate population, the frequency of inmate-on-inmate violence, and the high rate of negative interactions between staff and inmates. Our consultant expressed concern as to whether allegations of sexual assault are being consistently reported and investigated in compliance with the Prison Rape Elimination Act, 42 U.S.C. § 15601 et seq., and the relevant DOJ implementing regulations. We encourage the Department to examine these issues.

15 The Department’s Use of Force Directive directs that force may be used “only as a last alternative after all other reasonable efforts to resolve a situation have failed.” The Directive further provides that “the amount of force used at any time should always be proportional to the threat posed by the inmate at that time,” and “staff must start with the minimum amount of force needed and escalate the amount of force used only if the situation requires escalation.”

16 24-hour reports include summaries of unusual incidents that occurred during a given day, including use of force incidents.

17 The 64 incidents include 25 “use of force allegations.” There were 12 additional incidents that do not specifically reference a blow to the head or face but state that the officer punched the inmate and the inmate sustained an injury to his head or facial area.

18 DOC’s Use of Force Directive prohibits using force “[t]o punish, discipline, assault or retaliate against an inmate.”

19 The account of this incident is based on our consultant’s interviews of the two inmates, and DOI’s report summarizing its investigation and findings.

20 In late 2013, DOHMH’s Bureau of Correctional Health Services (“CHS”) analyzed serious injuries involving staff uses of force for the entire inmate population. According to CHS’ report summarizing its review, 64 of the 80 inmates CHS interviewed reported having been struck by DOC staff after being restrained.

21 DOC does not require staff to document counseling efforts so it is difficult to assess compliance with this policy.

22 According to the report prepared by DOHMH’s Bureau of Correctional Health Services (discussed supra at n.20), 45 inmates (including adult inmates) reported in interviews that DOC staff interfered with their effort to seek medical treatment or otherwise retaliated against them after a use of force incident by, among other things, threatening inmates with violence or infractions unless they declined medical care or stated that the injures were due to something other than staff use of force.

23 The inmate’s allegation that he was pressured not to report this incident also raises concerns under the Prison Rape Elimination Act, 42 U.S.C. § 15601 et seq., and the relevant DOJ implementing regulations.

24 Oleoresin Capsicum (“OC”) spray, commonly known as pepper spray, is a chemical agent that irritates the eyes and respiratory system of a target.

25 In July 2014, criminal charges were brought by the Bronx District Attorney’s Office against a Captain and two correction officers for beating an adult inmate unconscious. The DOC staff members were charged both with felony assault and with felony charges in connection with preparing and submitting false “use of force” reports. In June 2013, criminal charges were brought against ten DOC staff members, including the former Assistant Chief of Security, two Captains, and seven correction officers, in connection with a severe assault on an adult inmate that resulted in multiple facial fractures. These DOC staff members also were charged with not only felony assault, but with felony charges related to their attempts to cover-up the attack by submitting false use of force reports and false use of force witness reports, in which DOC staff claimed the inmate attacked an officer first. While the inmates involved in these particular assaults were not adolescents, the allegedly false information in the use of force reports in these criminal incidents is similar to the patterns suggesting false reporting that we found in our investigation.

26 According to the Department’s Use of Force Directive, a Class A use of force is one which requires “medical treatment beyond the prescription of over-the-counter analgesics or the administration of minor first aid,” including lacerations, fractures, sutures, chipped or cracked teeth, or multiple abrasions and/or contusions.

27 In early 2014, DOC announced that the ID was going to add 26 staff positions.

28 According to the Department’s Use of Force Directive, a Class B use of force is one “which does not require hospitalization or medical treatment beyond prescription of over-the-counter analgesics or the administration of minor first aid.” The “forcible use of mechanical restraints in a confrontational situation that results in no or minor injury” is also a Class B use of force.

29 According to the Department’s Use of Force Directive, a Class C use of force is one that results in “no injury” to the staff member or inmate involved, and includes incidents where “use of OC-spray results in no injury, beyond irritation that can be addressed through decontamination.”

30 One officer was identified as having been “counseled” on October 18, 2012, then again on November 29, 2012, and yet a third time on December 12, 2012, with no escalating response from the Department.

31 During calendar year 2012 alone, one officer was involved in 16 reported uses of force.

32 The incentive pay offered to correction officers willing to work in adolescent housing areas is equal to a 3% increase for the first year, and can reach up to 12% over a 4-year period. As of January 14, 2014, only 38 staff members had received “specialty pay” since it was introduced at RNDC.

33 In early 2014, after our on-site tours of the facilities and staff interviews, the Department once again appointed a new RNDC Warden.

34 In August 2013, 11 inmates and one correction officer reportedly sustained injuries during a large fight involving adult inmates in GRVC. This incident was captured on video that was obtained by ABC News and posted on its website. (http://www.huffingtonpost.com/2013/08/2 ... 99160.html). Although there were numerous staff members at the scene, none intervened while inmates fought and threw chairs and other objects at each other. According to ABC, the incident continued for more than one hour.

35 The Integrity Control Officer is charged with overseeing the extent to which staff comply with Department policies and procedures.

36 The use of force training materials include an example that offers troublesome guidance to officers. In the example, an inmate is seated in an unauthorized area and refuses to comply with an order to return to his housing area. The inmate spits at the officer and states: “It will take more than you to move me.” The materials incorrectly indicate that these circumstances justify the use of chemical agents against the inmate. However, in such a situation, best practices require the officer to first seek to control the situation verbally by applying appropriate conflict resolution skills, according to our consultant.

37 Graham Rayman, Rikers Fight Club, The Village Voice, Feb. 4, 2009.

38 Press Release, Bronx District Attorney=s Office, Death of an 18-Year Old Inmate on Rikers Island Last October Leads to Numerous Charges, Jan. 22, 2009, http://bronxda.nyc.gov/information/2009/case3.htm.

39 Elizabeth A. Harris, Corrections Officers Plead Guilty in Assault Case, N.Y. Times, Oct. 21, 2011.

40 Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

41 Shortly after our second site visit in April 2013, DOC made the long overdue decision to stop placing infracted mentally ill adolescents in MHAUII. MHAUII was an inappropriate setting for any inmate suffering from mental illness, particularly adolescents. The conditions were deplorable, the physical facilities were in disrepair, and adolescents were not separated by sight and sound from adult offenders as required by correctional standards. It was evident that the adolescents were at risk of psychologically decompensating due to the corrosive environment. Several of the most egregious use of force incidents occurred at MHAUII. At the end of 2013, DOC finally closed the entire unit.

42 Inmates may be permitted to attend visits, the law library, or religious services in addition to the one out-of-cell hour permitted for recreation. In addition, as discussed below, certain infracted inmates with mental illnesses are placed in RNDC’s restrictive housing unit where they may earn additional out-of-cell time as they reach various goals.

43 During our investigation, we did not focus on the nature or quality of the educational services delivered to adolescents, including adolescents placed in segregation units. However, we are concerned that the educational services offered to youth in punitive segregation units may not comply with the requirements of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”), and may look more closely at this issue in the future.

44 In late 2013, DOC opened the Clinical Alternative to Punitive Segregation (“CAPS”) unit as an alternative to punitive segregation for inmates deemed to be seriously mentally ill. When placed at CAPS, the inmate’s infraction is set aside and he is assigned to a secure setting for treatment for a period of time determined by clinical staff. Unfortunately, the unit has only 60 beds for adult and adolescent male inmates combined, far fewer than is needed to accommodate the high number of seriously mentally ill inmates who commit infractions. Very few adolescents have been placed in CAPS. Gilligan Report, at 8.

45 Our investigation has not focused on the quality or adequacy of the inmate disciplinary system. However, based on the volume of infractions, the pattern and practice of false use of force reporting, and inmate reports of staff pressuring them not to report incidents, we believe the Department should take steps to ensure the integrity of the disciplinary process.

46 DOC has indicated that it plans to implement additional reforms, including the use of intermediate sanctions in lieu of punitive segregation (e.g., in-school detention, probation).

47 Ten of the inmates housed in the RHU had sentences exceeding 100 days.

48 An asterisk indicates that our consultant interviewed the inmate involved in the incident during our on-site tours.