The Public Eye: Confidential documents cite interference in prison death review

02/16/2014 12:00 AM

10/08/2014 11:49 AM

As California prison officials began looking into the September death of a breathing-impaired inmate who had been pepper-sprayed by a guard, they found themselves facing unusual interference and oversight from above, according to documents from an internal corrections investigation obtained by The Sacramento Bee.

A corrections psychologist whose duties included a review of the Sept. 7 death of 35-year-old Joseph Duran complained she was told to delete information she had obtained about the death and, in one instance, to remove a reference to the use of pepper spray, according to transcripts of interviews conducted in recent weeks by internal affairs investigators with the California Department of Corrections and Rehabilitation.

The transcripts, labeled confidential because they are part of an internal affairs probe, show that at least three prison guards are under investigation for “dishonesty” in connection with Duran’s death, including the officer who pepper-sprayed Duran on Sept. 6. That officer reported that he had done so from a distance of 6 feet, but later changed his story to say he had done so from 2 to 3 feet, the transcripts show.

The transcripts also disclose details about how the guard used the pepper spray after seeing his sergeant silently nod at him, and how a nurse who found the inmate unconscious hours later called for help from guards but could not get them to immediately open the cell so she could try to revive Duran.

“I’m a nurse, get him out of the cell,” nursing supervisor Marie Blim said she told the guards, but to no avail.

Duran, who was mentally ill, was a career criminal doing time at Mule Creek State Prison in Ione on a robbery conviction. He breathed through a tube in his throat, the result of a 2006 tracheotomy that stemmed from a violent confrontation with police. His death has evolved into an explosive issue at the California Department of Corrections and Rehabilitation since it was revealed by The Bee last month.

In light of the revelations, U.S. District Judge Lawrence K. Karlton has reopened an evidentiary hearing in Sacramento federal court over alleged use of excessive force on mentally ill inmates in California prisons, and attorneys for the inmates have accused the state of covering up the fact that Duran was pepper-sprayed, an allegation state lawyers staunchly deny.

Duran’s parents, who learned of their son’s death four months later when contacted by The Bee, have retained Sacramento attorney Stewart Katz, who filed administrative claims against the state Thursday, precursors to a wrongful death lawsuit.

And corrections officials have launched a series of investigations into how the death was handled and why Duran was left in his cell for seven hours after he was pepper-sprayed, despite requests from medical staff that he be extracted, decontaminated of the pepper spray, medicated, and his breathing tube – which he had jerked out of his throat after being sprayed – reinserted.

“I am very concerned about this case,” CDCR Secretary Jeffrey Beard said in an interview Thursday. “I’ve had a number of discussions with staff to see that we are moving ahead to fully investigate every aspect of the case, and once that investigation is done, we’ll take whatever appropriate action should be based on the findings.”

Beard said he could not discuss details of the case while the investigations are underway, but added that he would not tolerate any efforts to cover up failings in the way the situation was handled.

“I can tell you that if the investigation were to reveal anybody who’s putting pressure on other people or asking people to change something inappropriately, that that would then become the subject of an investigation ... and I would see that that’s taken to the fullest extent as well,” Beard said.

Duran had been at Mule Creek for only two days when the pepper spray episode took place. He had been transferred from North Kern State Prison on Sept. 4, and was assigned to a mental health crisis bed and briefly placed on suicide watch at Mule Creek.

He was removed from suicide watch on Sept. 6, and throughout the day had refused to take his medications, come out of his cell or eat his meals, which he insisted had been poisoned, according to internal documents. By 10 p.m., he was refusing to remove his hands from the portal in his cell door, an opening through which meals can be passed but too small for an inmate to crawl through.

Holding the food port open is considered a security violation, and guards Roy Chavez and Timothy Nelson grabbed his wrists and “we attempted to pry his fingers from the food port,” Chavez told internal affairs investigators, according to a transcript of his Feb. 4 interview.

After they failed, the guards summoned Sgt. Mark Shepard, who told investigators that he tried unsuccessfully to persuade Duran to release his grip. By then, Chavez had removed the MK-9 pepper spray canister from his holster, Shepard recalled, according to the transcripts.

“I looked back at him, gave him a nod and Officer Chavez said, told him to the effect, ‘This is your one last chance to take your hand off the food port,’ and that’s when he sprayed,” Shepard said.

Chavez said he sprayed Duran, whose face was framed in the food port, because there was “an immediate threat to staff,” explaining that the inmate could have spit, grabbed someone or “gassed” passersby with feces or urine.

In his initial report on the incident, submitted to corrections officials, Chavez said he unleashed a 2-second burst of spray into Duran’s face from about 6 feet away.

But, after reading accounts of the inmate’s death in The Bee last month, Chavez said he more clearly recalled details of the incident and filed a new report indicating he might actually have been “2 to 3 feet away” when he sprayed Duran “from his forehead to his chin.”

Nelson and Shepard also said in their reports that the pepper spray had come from about 6 feet away, but were not pressed by internal affairs investigators over whether that may have been incorrect, the transcripts show.

The guards did not respond to requests for comment made through the prison and corrections officials. A spokesman for the California Correctional Peace Officers Association said no one could comment on an ongoing investigation.

“In accordance with the department’s operations manual, all CCPOA members are required to cooperate and comply with investigators in an internal investigation,” spokesman JeVaughn Baker said. “We obviously encourage them to do so.”

‘Get him out’

Whether the pepper spray contributed to Duran’s death remains in dispute. The Amador County coroner ruled his death a suicide, saying he died by asphyxiation after stuffing spaghetti and feces into the breathing hole in his throat left open after he yanked out his tube.

His body was cremated less than three weeks later and his ashes scattered at sea long before his parents learned he was dead.

The corrections department has since ruled the incident an accidental death, and a psychologist reviewing the case for the department concluded Duran was using the pasta not to kill himself but to soothe his throat from the burning effects of the pepper spray.

The case is now the focus of internal investigations, partly because guards refused to remove him from his cell even after medical officials insisted he be extracted, decontaminated, medicated and his tube reinserted.

A medical doctor and a psychiatrist told internal affairs investigators that, in separate phone calls, they ordered Duran removed but were rebuffed by custodial officers, who argued it was too dangerous.

Karuna Anand, a staff psychiatrist at Mule Creek, also told investigators that her treatment plan for Duran included a warning to a correctional sergeant that pepper spray was not to be used on him because of his breathing issues. The sergeant was “in agreement with that,” she said.

Nevertheless, just before midnight on Sept. 6, a nurse called Anand and told her Duran was hyper-agitated and had been pepper-sprayed.

According to the transcript of her interview with investigators, Anand recalled asking the nurse, “‘Why was he pepper-sprayed? We had a treatment plan that he will not be pepper-sprayed. Why was he pepper-sprayed; why was he pepper-sprayed?’

“And what (the nurse) told me was she does not know, it was in the previous shift, and what should she do. And those were her exact words. ... ‘He is agitated because he was pepper-sprayed.’ And I said, ‘Okay, pull him out, give him,’ you know I don’t know if I said 10 milligrams of Zyprexa or some emergent medication. ‘Pull him out, clean him up, give him the medication’ ... because of the fact that he had a trach tube. ...”

Anand was asked by investigators why she thought her orders were not carried out and why she wasn’t consulted further. “I mean, that’s the question in mind, why was I not called?” she said.

In another part of the interview, however, Anand said her order not to use pepper spray was not written down and she does not believe prison workers did anything wrong.

“I mean, it’s like, you know, I don’t think we did anything wrong. I am sorry this happened, but, you know, it’s sad but ... ” she said, according to the transcript.

Transcripts of the interviews include Blim, the nursing supervisor summoned to Duran’s cell when he was found lying unconscious at 5 a.m. Sept. 7.

“He was kind of ‘aaahh,’ like leaning up against the wall with his arm up,” Blim told interviewers on Feb. 4. “And obviously from here to there, I’m going to say, it looked like he wasn’t breathing. You know, it looked like something definitely wrong.”

Blim said she told a nurse to sound the alarm to get guards to open Duran’s cell to try and resuscitate him but that the three officers who responded did so without any urgency.

“They look in the cell, they turn around, they kind of walk back out,” Blim said. “I’m getting upset because I’m going, ‘He needs to get out of his cell, get him out of his cell.’ ”

Instead, the guards began pulling on paper “isolation gowns,” booties and gloves, leaving her to ask at least 10 times that they retrieve Duran. “I said, ‘If you don’t get him out of there I’m taking down all your names, what are your names?’ ” she recounted to investigators.

Eventually, the guards handcuffed Duran, who at that point was unconscious and naked, binding his hands behind his back and carrying him out face down, Blim said.

Duran never regained consciousness. Blim and other medical staff tried to revive him, but were delayed because they could not immediately find a defibrillator that should have been – but was not – atop an emergency medical “crash cart,” or a breathing tube that should have been – but was not – readily available to reopen his airway, Blim said.

Review team frustrated

The timing of Duran’s death, and the fact that pepper spray was used, presents a difficult issue for corrections officials, who were at that very time engaged in fighting accusations by inmates’ attorneys that guards indiscriminately use the chemical on mentally ill prisoners.

A hearing on use of pepper spray and discipline against mentally ill inmates began Oct. 1 and went into November in federal court in Sacramento, during the same period that corrections officials were reviewing Duran’s death.

Lawyers for the state have said in court papers that they did nothing to withhold information on the incident because of the ongoing federal hearing, but the corrections psychologist who routinely reviewed prison deaths told investigators she ran into roadblocks.

“This one was a very unusual report,” psychologist Corey Scheidegger told internal affairs investigators Jan. 27.

Scheidegger, who was questioned about whether she knew how internal reports on the Duran matter were leaked to The Bee, said she and another reviewer brought in to write a report about the death were frustrated by interference they experienced.

At one point, Scheidegger said, she was told to remove a mention of pepper spray from one report, with a superior informing her it was sufficient to have it included on a different form and “does not need to be documented anywhere else.”

“So you saw that as a major policy violation or rule violation?” internal affairs investigator Kirk Stinson asked her.

“Yes,” she replied, adding that other information also was deleted, including information derived from interviews with prison staffers.

She said she was told whatever was learned from talking with prison personnel, both guards and medical staff, could not be included in the onsite reviewer’s report in anticipation of an internal affairs probe.

“Typically, we do have interviews with staff as an integral part of the review process,” Scheidegger said, adding later: “I was told to take all information out that came from an interview (with prison staffers).

“I mean, it was hard because we don’t really know why things were happening or they’re just some odd and kind of fishy things,” she told investigators. “But we couldn’t really look into them because supposedly of investigations (by the Office of Internal Affairs) that were being conducted.”

Scheidegger said Rachel Bramble, the psychologist who interviewed some prison staffers for the death review before she was told to back off, expressed frustration that her inquiry was short-circuited by a corrections lieutenant and his superiors.

“What struck Rachel was that she was not in control of the review,” Scheidegger said.

She added that she did not believe Duran posed a threat to the prison staff before he was pepper- sprayed.

“I mean, he had his hands in the food port,” she said. “He did not represent a serious threat to the safety and security of the institution. He couldn’t have escaped, and he didn’t have a shank. He wasn’t threatening anybody. I don’t see that as being justified in pepper-spraying an already medically and psychiatrically fragile person.”

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