The Public Eye

Was it suicide? Questions abound in death of pepper-sprayed inmate

Sometime around 10 p.m. on Sept. 6, the guards at Mule Creek State Prison in Amador County decided to take action against Joseph Damien Duran, a mentally ill inmate who had been acting up inside his cell for hours.

Duran, a 35-year-old career criminal who had been at the prison for two days, was refusing to take his medications, pounding on his cell door and making faces at prison staffers. He rejected orders to place his hands through the food port opening in his cell door to be handcuffed, and refused to close the food port. Finally, guards aimed through the port and blasted him in the face with pepper spray.

Duran breathed through a tube in his throat, the result of a 2006 tracheotomy. Agitated and still coated with pepper spray, he pulled the breathing tube out of the hole, or stoma, in his throat and rinsed it in the cell toilet. He began putting his finger into the hole and coughing up blood; he took strands of spaghetti from his dinner tray and stuffed those into the throat hole as well. Over the next few hours, he would continue to refuse to come out of the cell, where he was housed alone.

Within two hours, a prison doctor ordered that he be removed from the cell, medicated, decontaminated of the pepper spray and the tube reinserted in his throat. But guards refused, saying he was too dangerous to move. They left him in the cell alone despite several requests by medical staffers to have him removed.

Duran was dead within seven hours. The coroner labeled the case a suicide.

But confidential corrections documents obtained by The Sacramento Bee, including notes of interviews with prison staffers and an internal review of the case by a psychologist, raise questions about Duran’s treatment and have sparked a demand for an investigation by attorneys representing mentally ill inmates in an ongoing class-action lawsuit.

One internal document, an “executive summary of a suicide report” dated Oct. 31, disputes the decision to label Duran’s death a suicide, and concludes the case “may have been a preventable death in custody.”

Another death review summary, compiled from interviews with prison staffers, indicates that three hours after Duran was pepper-sprayed a nurse called the prison doctor on duty to report the inmate was “having trouble breathing” and pacing in his cell. The doctor responded that if Duran was “walking around how can he be in distress,” then told the nurse not to call again “if it is not important.”

Those documents and an Amador County coroner’s report show prison officials gave conflicting stories to investigators following the incident.

There was no public announcement of Duran’s death. Prison officials called a contact number for Duran’s next of kin that was disconnected, then sent a telegram to a Pico Rivera address where he had lived as a boy. His parents had long since moved, and though their names were listed on the death certificate, prison officials did not track them down.

The inmate’s parents would not learn until Jan. 8 – when a Bee reporter called to ask questions – that their son had died in prison and that his body was cremated 17 days later. Joseph Duran’s ashes were scattered at sea off the Marin County coast, according to a death certificate on file at the Amador County clerk’s office.

“What, they couldn’t find me to tell me my son got murdered in a prison cell?” asked Steven Duran, 61, a Los Angeles County worker who lives in Whittier with his ex-wife, Elaine, who is Joseph’s mother. “I don’t get that. I don’t understand that at all.”

The Amador County coroner concluded Joseph Duran died of asphyxia – the result of removing his breathing tube and placing food and fecal material into his stoma – and labeled the death a suicide. That conclusion was based on an autopsy, toxicology testing and interviews by an Amador County sheriff’s officer with a prison sergeant and a nurse.

A separate review conducted by a psychologist for the corrections department as part of court-required investigations of possible suicides came to a starkly different conclusion:

“It is this reviewer’s belief that he put spaghetti and bread in the stoma not to deliberately block his windpipe, but to soothe the irritation he felt from the pepper spray, as he made no attempt to conceal the insertion of food into the stoma from the nurse’s view.”

Officials with the California Department of Corrections and Rehabilitation say the case is still under investigation and that they are limited in their ability to discuss Duran’s death.

“On Sept. 6 at approximately 9:44 p.m., pepper spray was used in one two-second burst from six feet away to gain inmate Duran’s compliance and resolve a security breach,” Terry Thornton, the deputy press secretary for the corrections department, wrote in an email response to queries from The Bee. “This use-of-force incident is also being investigated and has also been reviewed by the prison’s committee that reviews all use-of-force incidents.”

She said that “due to medical privacy laws, there is not a lot of other information we can share with you.”

“However, we can tell you that this incident is being investigated,” she wrote. “All inmate suicides are thoroughly reviewed and investigated.”

Attorneys representing the state’s mentally ill inmates, who first learned of the case when contacted by The Bee, filed an “urgent petition” late Friday asking a federal judge to intervene.

The attorneys concluded a 28-day hearing in December at which they pressed for a court order that would halt the use of pepper spray on mentally ill inmates, and they now want the Duran death included as part of their evidence. They also have asked U.S. District Judge Lawrence K. Karlton for an investigation into whether the information was intentionally withheld and altered before they received it.

“Pepper-spray someone who has a known breathing problem?” asked Michael Bien, the lead attorney for the inmates. “How can you do that?

“I don’t understand how that can happen. We’re talking about torture here.”

‘A really good kid’

Duran was in Mule Creek State Prison serving a seven-year sentence for robbery, the latest in a life of crime that had kept him locked up much of the time from the age of 15.

Steven and Elaine Duran said they adopted the boy they call “Joey” when he was 5, and set about trying to raise him in a typical suburban setting that included his father coaching him in Little League and taking him fishing at an area lake on the family boat.

Last week, sitting in the dining nook of their tidy south Whittier home, they shared photos of their son that traced his metamorphosis: a young boy doing somersaults in the backyard with his baby sister Cheree; a serious looking youth in black tie, white dress shirt and black slacks at his first Communion; and later a young man whose face is etched with gang tattoos.

Duran’s parents say their son was a troubled youth whose biological parents were drug addicts. He eventually became addicted to heroin and began emulating gang members. They said he ran away from home at 15, dropped out of school in the ninth grade and never learned to read or write properly. He frequently refused to take medications prescribed for his hyperactivity and mental disabilities, which included bipolar disorder, antisocial personality disorder and hallucinations.

“He was a really good kid when he was on his medication,” said Elaine, 60. “But when he was off his medication he would just get wild.”

After Duran left home, he cycled between jail and life on the streets; his parents said they eventually hoped he would remain in jail because they thought he was safer there. “It got to the point where we were kind of happy because at least we knew he was getting fed and was safe,” his mother said.

Duran had a tracheotomy in 2006, his parents said, although there is dispute over why. Their son told them it stemmed from a confrontation with a deputy who hit him in the throat with a flashlight; corrections documents indicate “he was reportedly shot in the neck by police.”

Steven said he last saw his son about two years ago during a visit to the Los Angeles County jail, where Joseph was being held on charges of burglary and assault with a deadly weapon. He said he thought his son was still in that jail until The Bee contacted him this month with questions about the death.

Inmate’s final hours

The internal interviews conducted as part of the corrections department’s review of Duran’s death offer a narrative of his final days in custody.

On Aug. 30, he was transferred from the Los Angeles County jail to North Kern State Prison to begin his seven-year prison term. Within hours of arriving, he was written up for assaulting a peace officer and a short time after that began expressing suicidal thoughts.

That led to his transfer to a mental health crisis bed at Mule Creek, a prison outside Ione about 35 miles southeast of Sacramento.

He arrived there the evening of Sept. 4, one day after his 35th birthday, according to the documents, and was placed on suicide watch, requiring checks every 15 minutes. (The corrections department said in its email that he arrived there Sept. 5.)

By Sept. 6, the documents state, Duran was “much worse, anxious, agitated, restless, frantic, refusing to cuff up in order to be removed from his cell for morning rounds, taking his weight and other vitals, etc.

“He also has been refusing his meds and refusing to eat, communicating his belief that his food and medication are poisoned,” according to the documents.

At 3:30 p.m. on Sept. 6, a prison psychiatrist recommended the suicide watch be extended and that officials consider obtaining permission to medicate him involuntarily. A half-hour later, the psychiatrist ordered that Duran be removed from suicide watch and placed on “violence precautions,” a term the documents say “is not a recognized procedure” in prison mental health protocol.

“There was no psychiatry documentation of the clinical rationale for discontinuing suicide precautions,” the internal review states.

“The inmate spent the day standing at the cell window, sometimes knocking or beating on the cell door, talking incessantly,” the review states. “At times when the food port was opened, he attempted to get a look at the inmates in the other cells and persons in the hall.

“He told the nurses he wanted his medications, but at medication time he refused to (be handcuffed) and refused to let go of the food port so that it could be closed.”

At about 10:30 p.m., according to the internal report, with Duran’s face pressed against the open food port, correctional officers blasted pepper spray through the port, and closed it after he let go.

Duran, who stood 5 feet 8 inches tall and weighed 175 pounds, refused orders to come out of the cell after being pepper-sprayed. He doused himself with water in the sink, yanked out his breathing tube “and was observed putting his finger in the stoma repeatedly.”

At 11:35 p.m., a nurse called the psychiatrist on duty to report what had happened and the psychiatrist ordered him removed from his cell, decontaminated, medicated, and the breathing tube reinserted. But when the nurse went to a guard to request the removal, the guard “became argumentative and refused to remove the inmate from the cell, citing security concerns,” the documents state.

The nurse persisted, going to a sergeant and then the watch commander, and both refused to remove Duran. The administrative officer on duty “also refused to approve Inmate Duran’s removal from the cell,” the documents state.

At midnight, Duran was seen standing at the cell door, after smearing feces on the walls and door. At 2:30 a.m., “he was seen lying in his right side, eyes closed, apparently asleep.”

“He appeared to sleep until 0448, when a nurse saw him standing at his cell door window,” the documents state. “At 0507 hours, during morning medication pass, Inmate Duran was discovered unresponsive and not breathing on the floor of his cell.”

Duran was transferred to a gurney at 5:15 a.m., but the documents note that CPR was not begun for two minutes. Life-saving equipment required to be available at mental health crisis units such as the one where Duran was housed could not be located.

The version of events laid out in the interviews with prison staff does not match what Amador County sheriff’s investigators say they were told by a prison sergeant when they responded to a report of a death at the prison.

That version, documented in a narrative filed with Duran’s autopsy report, states that a prison sergeant told the sheriff’s investigator that after Duran was pepper-sprayed “the correctional staff attempted to enter the cell to offer decontamination to the decedent for the exposure to the (pepper spray), but the decedent fended them off and threatened them with bodily harm.”

Guards then “determined it prudent to lock the decedent down inside his cell until he calmed down,” the narrative said.

Attorneys want answers

Allegations that California uses excessive force against mentally ill inmates like Duran were among the topics of a 28-day hearing in federal court in Sacramento that began Oct. 1 and concluded Dec. 19. Judge Karlton has not yet issued his ruling.

Much of the testimony focused on when guards should use pepper spray and other types of force on inmates, and witnesses for the corrections department noted that pepper spray is typically used only after an inmate has been addressed repeatedly by medical staff, then warned by guards that pepper spray may be used if they do not comply with orders.

That process is required to be videotaped. But the rules do allow for an exception. If guards determine that an emergency exists, pepper spray can be used without any of those warnings, and the corrections documents state that is what happened in Duran’s case.

As the lead attorney for California’s mentally ill inmates since 1991, Bien has been exposed to numerous reviews of inmate deaths and suicides inside the state’s prisons, but he said the description of events involving Duran stunned him.

“I’ve never seen anything like what happened to this man,” Bien said. “They are responsible for the security of the inmates. Whether you call it suicide, neglect, accident or deliberate indifference, to stand outside a cell and watch someone die, I’ve never heard of it.”

Bien filed a court petition Friday asking Karlton to order a status conference “to address substantial and serious issues” raised by the documents The Bee obtained, including why the Duran case was not reported to attorneys earlier.

Bien noted that one report on Duran’s death was concluded on Oct. 31 and, under court-approved rules that govern the class-action lawsuit, should have been provided to inmate attorneys and a court-appointed special master by Nov. 6.

Instead, that report was provided to the inmate attorneys on Jan. 7, as they were learning of the case from The Bee. Bien asked Karlton for an investigation into whether the report was “delayed in light of the pending” ruling on use of force or for any other reason.

He also noted in his filing that the only prior notice he had received of Duran’s death was a copy of a Sept. 12 email sent by Deputy Attorney General Debbie Vorous to the special master, who oversees inmate mental health care and reports directly to Karlton.

The subject line of that email read “notification of inmate suicide” and describes staffers finding Duran “unresponsive and lying on the floor of his cell” the morning of Sept. 7.

There is no mention of pepper spray in the email.

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