By Anthony Rice
In Southern Ohio Correctional Facility, the arbitrator relied on a correctional sergeant’s positive work history and the lack of conclusive evidence to determine termination was without just cause. But the arbitrator imposed a 5 day suspension concluding that the Sergeant’s use of force report, while not “intentionally dishonest,” reflected a failure of “cooperation” because it lacked “detail.”
The incident arose when an inmate punched a correctional officer through the bars of his cell. During a transport to a closed door cell the inmate was led down a flight of stairs where, it is alleged, the inmate attempted to bite the transporting officer. The Sergeant, standing in the stairwell to provide assistance, then swung his foot three times at the head and shoulder area of the inmate.
After being placed in a secured cell, a registered nurse was sent to assess the inmate. The nurse reported no visible injuries. The inmate, when asked about his condition, stated he was not injured. The nurse performed a second assessment upon request by the Warden. The nurse moved inside the outer bars and looked closely at the inmate through the window of the cell. She reported being six or ten inches from the inmate. Her report again noted no injuries to his face.
Hours after the two assessments the inmate was removed from his cell and taken to the infirmary. At the infirmary, a second nurse reported abrasions to the face and chest. Once again, the first nurse had not observed these injuries when she examined the inmate earlier that day. In fact, the first nurse suggested that it was possible that the injuries were self-inflicted.
The most significant piece of evidence is a video which captures the struggle with the inmate. The video makes it clear that the Sergeant’s intervention commenced as the inmate was being escorted downstairs to the secured cell. However, that is practically all the video makes clear.
The video does not provide clear evidence regarding the foot strikes. Therefore the [Sergeant]’s explanation is as credible as that of the Employer.
As for the injuries to the inmate, the arbitrator found that
[t]here are a number of possibilities. The bruises on the face and chest could have been a result of being forcibly taken down on cement stairs. It is difficult to conclude with any certainty that the [Sergeant] was the cause of the injuries.
The arbitrator explained that “based on the lack of conclusive evidence” the employer could not carry its burden that excessive force had occurred by “clear and convincing evidence.”
The arbitrator then examined the County’s charge that the Sergeant’s force report was untruthful:
The Grievant was charged with violation of Rule 24, “Interfering with, failing to cooperate in, or lying in an official investigation or inquiry.” The initial report of the Grievant completely fails to chronicle the events on the stairs and his own role. Trainer Logan provides insight regarding the lack of detail, but the Grievant is well trained and has significant experience in completing use of force incident reports. He had completed many similar reports in the past. He admitted during hearing to have failed in this regard. Beyond the initial report, there is no clear evidence that the Grievant was intentionally dishonest and that he failed to cooperate in the investigation. Nevertheless, the Grievant violated Rule 24 based on the initial report he completed following the incident.
Based on this reporting failure, the arbitrator found a 5 day suspension was warranted:
The Grievant, by his own admission, violated Rule 24 based on his initial incident report which failed to describe the take down of the inmate and his actions utilized to control the situation. This is a serious violation and cannot be excused based on the Grievant’s extensive training and experience.
