Federal Monitor's Rikers Report July 10, 2023

Case 1:11-cv-05845-LTS-JCF Document 557 Filed 07/10/23 Page 1 of 288
Special Report
by the
Nunez Independent Monitor
July 10, 2023

THE NUNEZ MONITORING TEAM
Steve J. Martin
Monitor
Kelly Dedel, Ph.D.

Subject Matter Expert
Anna E. Friedberg
Deputy Monitor
Dennis O. Gonzalez
Associate Director
Patrick Hurley
Alycia M. Karlovich
Analyst
Emmitt Sparkman
Table of Contents
Introduction ..............................................................................................................1
Executive Summary ................................................................................................................. 2
Role of the Monitor & Reporting ............................................................................................ 3
Background of Nunez Court Orders ........................................................................................ 4
Monitoring Team’s Assessment of Progress ........................................................................... 6
Organization of the Report .................................................................................................... 10
Security, Violence, and Use Of Force...................................................................12

Unnecessary and Excessive Force ......................................................................................... 13
Staff Reporting of Incidents .................................................................................................. 28
Security Initiatives ................................................................................................................. 31
Violence Indicators ................................................................................................................ 54
Department’s Use of Data to Improve and Reduce the
Use of Force and Increase Facility Safety ............................................................................. 64
Conclusion ............................................................................................................................. 67
Leadership, Supervision, and Training ...............................................................69

Department Leadership.......................................................................................................... 69
Supervision ............................................................................................................................ 73
Training ................................................................................................................................. 82
Conclusion ............................................................................................................................. 87
Uniform Staffing Practices ....................................................................................89

Efforts to Improve the Availability of Staff .......................................................................... 89
Staff Assignments to Posts in the Jails .................................................................................. 98
Conclusion ........................................................................................................................... 107
Management of Incarcerated Individuals .........................................................109

Intake ................................................................................................................................... 110
Classification ....................................................................................................................... 121
Management of Incarcerated Individuals Following Serious Incidents of Violence .......... 123
Conclusion ........................................................................................................................... 126
Staff Accountability – Identifying and Addressing Misconduct .....................127

Regression in Identifying Misconduct ................................................................................. 127
Addressing the Misconduct & Case Processing .................................................................. 131
Conclusion ........................................................................................................................... 140
DOC’s Management Structure Management of Nunez Court Orders ..........142

DOC’s Dysfunctional Management Structure ..................................................................... 142
Department’s Efforts to Address the Monitoring Team’s April 2023 Recommendations .. 160
Update on Issues Discussed at the June 13, 2023 Emergency Court Conference ............... 163
Conclusion ........................................................................................................................... 165
Overarching Initiatives Related to Reform .......................................................166

Citywide Task Force ............................................................................................................ 166
Recruiting, Hiring and Onboarding New Staff .................................................................... 166
Reducing the Population & Addressing Increasing Lengths of Stay in Custody ................ 168
Conclusion and Monitor’s Assessment

Related to § G ¶ 6 of the Action Plan .................................................................171
Assessment of Progress & Risk of Harm Pursuant to Action Plan § G. ¶ 6........................ 172
Next Steps ............................................................................................................................ 177
Appendix A: Data ................................................................................................180

Annual UOF Number and Average Monthly Rate .............................................................. 181
UOF Number and Average Monthly Rate – January 2022 to May 2023 ............................ 183
Annual Number and Average Monthly Rate of Stabbing and Slashing .............................. 184
Number and Rate of Stabbing and Slashing from January 2022 to May 2023 ................... 186
Annual Number and Average Monthly Rate of Fights........................................................ 187
Recent Number and Average Monthly Rate of Fights from January 2022 to May 2023.... 189
Number and Average Monthly Rate of Assault on Staff, with and without UOF .............. 190
Rapid Review Outcomes ..................................................................................................... 191
Use of Force Involving Unmanned Posts ............................................................................ 192
Cell Door Installation .......................................................................................................... 194
Number of ADWs and Captains .......................................................................................... 195
Status of UOF Investigations ............................................................................................... 197
2
Outcome of Intake Investigations ........................................................................................ 198

Status of Investigations ........................................................................................................ 200
Staff Suspensions ................................................................................................................. 201
Status of Disciplinary Cases ................................................................................................ 202
Command Discipline ........................................................................................................... 203
Unmanned Posts & Triple Tours ......................................................................................... 204
Sick Leave, Medically Monitored/Restricted, and AWOL ................................................. 206
Leadership Appointments – January 2022 to June 2023 ..................................................... 209
Appendix B: Images of May 26, 2023 Incident #1 ............................................211

Appendix C: Monitor’s April 2023 Recommendations....................................224
Appendix D: Transcript of Nunez Video ...........................................................232
Appendix E: Proposed Court Order ..................................................................235
Appendix F: Commissioner’s May 26, 2023 Letter To Monitor .....................240
Appendix G: Disciplinary Decisions by OATH &
Civil Service Commission ....................................................................................245
3
INTRODUCTION
This report is the eighth 1 filed by the Monitoring Team since the Action Plan was ordered
by the Court on June 14, 2022 (dkt. 465) and is filed pursuant to § G ¶ 2 of the Action Plan (as
revised pursuant to the Court’s May 5, 2023 Order (dkt. 529)). The purpose of this report is to
provide a neutral and independent assessment of the Department’s progress toward compliance
with the requirements of the Action Plan after its first year of implementation along with relevant
updates regarding the Department’s management of the Nunez Court Orders 2 and the Monitor’s
Assessment of Compliance pursuant to § G ¶ 6 of the Action Plan.
The Monitoring Team last filed a report on June 8, 2023 and participated in an
Emergency Court Conference on June 13, 2023. Since then, the Monitoring Team has remained
actively engaged with all Parties. The Monitoring Team continues to communicate routinely
with Department officials and to evaluate relevant information and data. The Monitoring Team
has also met with counsel for the Plaintiff Class and the Southern District of New York. The
Monitor and Deputy Monitor have also met with the City’s Corporation Counsel, the U.S.
Attorney for the Southern District of New York and the Court to discuss the current state of
affairs.
1
See Monitor’s June 30, 2022 Report (dkt. 467), Monitor’s October 27, 2022 Special Report (dkt. 471),
the Monitor’s February 3, 2023 Special Report (dkt. 504), Monitor’s April 3, 2023 Report (dkt. 517),
Monitor’s April 24, 2023 Status Report (dkt. 520), Monitor’s May 26, 2023 Special Report (dkt. 533),
and Monitor’s June 8, 2023 Special Report (dkt. 541). The Monitor has also filed two letters on May 31,
2023 (dkt. 537) and June 12, 2023 (dkt. 544).
2
The Nunez Court Orders, include, but are not limited to the Consent Judgment (dkt.249), the First
Remedial Order (dkt. 350), the Second Remedial Order (dkt. 398), the Third Remedial Order (dkt. 424),
the Action Plan (dkt. 465), and the June 13, 2023 Order (dkt. 550).
1
Executive Summary
Following the first year of the Action Plan’s implementation and after nearly eight years
of monitoring since the Consent Judgment went into effect, there is no question that some
progress has been made, but many of the initiatives required by the Action Plan remain
incomplete or have not been addressed, and worse, there has been a disturbing level of regression
in a number of essential practices. Compounding the concerns about the overall lack of progress
is what appears to be the Department’s inability or unwillingness to identify (and therefore
address) the objective evidence regarding the pervasive dysfunction and harm that continues to
occur daily in the jails. The Department’s recent notable failures to consult with the Monitoring
Team on issues that are clearly Nunez-related are also a concerning trend that serves as an
impediment to reform.
As discussed in each section throughout this report, the pace of reform has stagnated
instead of accelerated in a number of key areas, meaning that there has been no meaningful relief
for people in custody or staff from the violence and the unnecessary and excessive use of force.
A common theme unites the discussions in each section of this report—discrete areas of success
and progress can be identified, but more frequent are failures to apply even the most basic
correctional skills to improve practice.
Throughout this report, the Monitoring Team makes recommendations about short-term
actions that can and must be taken in the next few months to address this imminent risk of harm.
Further, for the reasons outlined in this report, and explained in greater detail in the conclusion,
the Monitoring Team recommends that the Court initiate contempt proceedings in order to
coerce compliance by the City, Department, and the Commissioner to address the condition
precedents on which the Nunez Court Orders rest – including the pace of reform, improved
2
security practices, and the management of the Nunez Court Orders. More broadly the totality of
circumstances require that additional remedial relief (beyond contempt proceedings) is necessary
in order to implement the requirements of the Nunez Court Orders and catalyze the substantive
changes required to protect the safety and welfare of the many people held in custody and who
work in the jails.
Role of the Monitor & Reporting
The Monitor is an agent of the Court. See Consent Judgment § XX. ¶ 30. The essence of
a Monitor’s role is to provide a neutral and independent assessment of compliance, which is
specifically required by the Consent Judgment in this case. See Consent Judgment § XX. ¶¶ 1
and 18. Together, these paragraphs hold the Monitor responsible for assessing compliance via
“independently verifying any representations from the Department regarding its progress toward
compliance [ . . .] and examining any supporting documentation where applicable[.]” Further, as
part of the Monitor’s reporting obligations he must include “…the factual basis for the Monitor’s
findings [. . . ].”
The Monitoring Team has issued more than 40 reports and letters to the Court since the
inception of the Consent Judgment. Just during the past three months, the Monitoring Team has
issued five reports (including this report) 3 and has submitted two substantive letters to the
Court. 4 Nearly all of the issues, deficiencies and poor practices discussed in this report have been
addressed in multiple Monitor’s Reports, some dating back years. In many of the substantive
areas of the Action Plan, the discussion in this report closely mirrors reporting from October
3
See Monitor’s April 3, 2023 Report (dkt. 517), Monitor’s April 24, 2023 Report (dkt. 520), Monitor’s
May 26, 2023 Report (dkt. 533), Monitor’s June 8, 2023 Report (541) and this instant report.
4
See Monitor’s May 31, 2023 letter (dkt. 537) and June 12, 2023 letter (dkt. 544)
3
2022 and/or April 2023. To the extent that information or findings are consistent with what has
been previously reported, citations to prior reports are provided to facilitate cross-referencing to
more detailed information.
Background of Nunez Court Orders
The Consent Judgment was entered on October 22, 2015. Since then, the Court has
entered five substantive Orders intended to address the City and Department’s failure to
implement the requirements of the Consent Judgment. The First Remedial Order was entered on
August 14, 2020 following the non-compliance notice 5 issued on June 15, 2019 by counsel for
the United States and Plaintiff Class to address Defendants’ non-compliance with a number of
provisions of the Consent Judgment. 6 A Second Remedial Order was entered on September 29,
2021 in response to the “deteriorating circumstances at Rikers Island and the ongoing dangerous
and unsafe conditions in the jails addressed in the Monitor’s reports dated August 24, 2021 (Dkt.
No. 378), September 2, 2021 (Dkt. No. 380), and September 23, 2021 (Dkt. No. 387).” The
Second Remedial Order required the Department to take a number of steps outlined in the
Monitor’s September 23, 2021 Report to address the unsafe conditions in the jails and the
ongoing violation of core provisions of the Consent Judgment. 7 A Third Remedial Order was
entered on November 22, 2021 to address “the Department’s ongoing, widespread, and long-
5
This notice was provided to Defendants pursuant to Section XXI, ¶ 2 of the Consent Judgment.
6
The following provisions of the Consent Judgment were identified: Section IV, ¶ 1 (Implementation of
Use of Force Directive); Section VII, ¶ 1 (Thorough, Timely, Objective Investigations); Section VII, ¶ 7
(Timeliness of Preliminary Reviews); Section VII, ¶ 9 (Timeliness of Full ID Investigations); Section VII,
¶ 11 (ID Staffing); Section VIII, ¶ 1 (Appropriate and Meaningful Staff Discipline); Section XV, ¶ 1
(Inmates Under the Age of 19, Protection from Harm); Section XV, ¶ 12 (Inmates Under the Age of 19,
Direct Supervision); and Section XV, ¶ 17 (Inmates Under the Age of 19, Consistent Assignment of
Staff).
7
Recommendations included immediate security initiatives, expanding criteria for Department leadership,
and appointing a Security Operations Manager.
4
standing non-compliance with Section VIII, ¶ 1 of the Consent Judgment and [the Monitor’s]
concerns with the backlog of disciplinary cases involving UOF Violations.” 8
In its December 6, 2021 Report (dkt. 431), the Monitoring Team stated that since the
inception of the Consent Judgment, “four foundational issues [have been revealed] that stymie
the efforts to reform the agency and are directly contributing to the inability to reform the
agency.” At pg. 11. The Monitoring Team’s concerns intensified, leading the Monitoring Team
to report in the Monitor’s March 16, 2022 Report (dkt. 438) that “[i]t is therefore impossible for
the Department to improve the practices targeted by the Consent Judgment without first
addressing four foundational issues: (1) ineffective staff management, supervision, and
deployment; (2) poor security practices; (3) inadequate inmate management; and (4) limited and
protracted discipline for staff misconduct.” At pg. 2. To address these foundational issues, the
Monitoring Team worked with the Department to develop an Action Plan that was intended to
provide a pathway for the Department to correct bedrock deficiencies so that it could ultimately
achieve the reforms contemplated under the Consent Judgment. In other words, “[t]he purpose of
the Action Plan is to provide a roadmap for addressing the foundational deficiencies that inhibit
the Department’s ability to build sustainable reforms. It is intended to guide the development of
reasonable and sound correctional practices and procedures and includes several timelines to
conduct this work.” 9 Furthermore, the Monitoring Team found that “[w]hile the Action Plan
certainly is a viable pathway forward, […] given the decades of mismanagement, quagmire of
bureaucracy, and limited proficiencies of many of the people who must lead the necessary
8
These concerns were described in the Monitor’s September 30, 2021 Report (dkt. 399).
9
See Monitor’s June 10, 2022 Letter to the Court (dkt. 462) at pg. 2.
5
transformation, serious concerns remain about whether the City and Department are capable of
fully and faithfully implementing this Action Plan with integrity.” 10
The Court entered the Action Plan on June 14, 2022 explaining “[t]his action plan
represents a way to move forward with concrete measures now to address the ongoing crisis at
Rikers Island. The Court has approved the proposed measures contained with the action plan, in
full recognition that further remedial relief may be necessary should Defendants not fulfill their
commitments and demonstrate their ability to make urgently needed changes.” 11
On June 13, 2023, one day before the one-year anniversary of the Action Plan, the Court
entered an order 12 requiring the Department collaborate with Monitor, among other things, to
ensure that the Monitor is able to fulfill his responsibilities. The Court also required the
Department to implement systemwide remedial actions to address operational deficiencies noted
in five serious incidents discussed in the Monitor’s May 26, 2023 Report. 13
Monitoring Team’s Assessment of Progress
The Monitoring Team’s approach to assessing progress and to describing the current state
of affairs provides important context for the information provided in this report. A
comprehensive assessment requires multiple measures to be evaluated in each key area of the
10
Ibid, p. 3.
11
June 14, 2022 Order (dkt. 466) at pg. 2.
12
The order entered by the Court was proposed by the Monitoring Team on June 12, 2023 (dkt. 544).
Counsel for the Plaintiff Class and the Southern District of New York consented to entry of the proposed
Court Order. See, id. The City consented to the entry of the Order with the exception of three objections
related to § I, ¶¶ 1 and 7 of the proposed Court Order. See City’ June 12, 2023 letter (dkt. 545). The Court
overruled the City’s objections for the reasons stated on the record during the June 13, 2023 Court
Conference. See June 13, 2023 Emergency Court Conference Transcript at pgs. 85 to 89.
13
The Court’s June 13, 2023 order also addressed the Monitoring Team’s assessment of compliance for
the period of January to June 2023.
6
Consent Judgment, Remedial Orders, and Action Plan (i.e., staffing, safety and security,
managing people in custody, and staff discipline) because no one metric adequately represents
the multi-faceted nature of these requirements. While quantitative data is a necessary component
of any analysis, relegating a nuanced, complex, qualitative assessment of progress towards
achieving compliance with these requirements into a single, one-dimensional, quantitative metric
is not practical or advisable. Data—whether qualitative or quantitative—cannot be interpreted in
a vacuum to determine whether progress has been made or compliance has been achieved. For
example, meeting the requirements of the Staffing section of the Action Plan relies on a series of
closely related and interdependent requirements (e.g., unpacking the source of the dysfunction
regarding abuse of leave, modernizing systems for scheduling staff, and teaching facility leaders
how to properly deploy staff to meet the Department’s core responsibilities) working in tandem
to ultimately increase the number of staff who are available to work directly with incarcerated
individuals. As such, there is no single metric that can determine whether the Staffing section of
the Action Plan has been properly implemented. Analogous situations appear throughout this
report, whether focused on discussions about the Department’s use of force practices, improving
safety in the facilities, or making the process for imposing staff discipline timelier and more
effective. The Monitoring Team therefore uses a combination of quantitative data, qualitative
data, contextual factors, and reference to sound correctional practice to assess progress with the
Action Plan’s requirements.
Further, two cautions are needed regarding the use of quantitative metrics. First, the use
of numerical data suggests that there is a definitive line that specifies a certain point at which the
Department passes or fails. There are no national standards regarding a “safe” use of force rate, a
reasonable number of “unnecessary or excessive uses of force” nor an “appropriate” rate at
7
which staff are held accountable. 14 Consequently, the Monitoring Team uses a multi-faceted
strategy for assessing compliance that evaluates all inter-related issues. For this type of analysis,
the decades-long experience and subject-matter expertise of the Monitoring Team is critical to
not only contextualize the information, but also to compare the Department’s current
performance with the operation of other jails and correctional systems.
Second, there are infinite options for quantifying the many aspects of the Department’s
approach and results. Just because something can be quantified, does not mean it is necessarily
useful for understanding or assessing progress. The task is to identify those metrics that actually
provide insight into the Department’s processes and outcomes and are useful to the task of
problem solving. If not anchored to a commitment to advance and improve the processes and
outcomes that underpin the requirements of the Nunez Court Orders, the development of metrics
merely becomes a burdensome and bureaucratic distraction.
It is axiomatic that reform is intended to improve upon the conditions at the time the
Court first entered the Consent Judgment. Equally critical is to recognize that the City and
Department agreed to the parameters of each of the Nunez Court Orders. 15 The Action Plan
addresses foundational issues with the overall goal of creating the capacity to comply with the
requirements of the Consent Judgment. None of the Court’s Orders “move the goal posts” or
materially change the Department’s obligation to fully comply with the Consent Judgment. For
14
Notably, this is why neither the Consent Judgment, the underlying Nunez litigation, CRIPA
investigation, the Remedial Orders, nor the Action Plan include specific metrics the Department must
meet with respect to operational and security standards that must be achieved.
15
The City and Department were signatories to the Consent Judgment, First Remedial Order, Second
Remedial Order, and Third Remedial. With respect to the Action Plan, the City supported the Court’s
entering of the City’s Final Action Plan. See City’s June 10, 2022 Letter (dkt. 463). As for the Court’s
June 13, 2023 Order, the City and Department consented to the Order with three objections related to §I
¶¶ 1 and 7. See City’s June 12, 2023 Letter (dkt. 545).
8
this reason, the Monitoring Team compares current performance levels and key outcomes to
various periods of time, including those at the time the Consent Judgment went into effect. The
Monitoring Team has taken this same approach throughout the duration of its work.
Since the Consent Judgment was entered, changes to the context within which the jails
operate have occurred and these externalities must be recognized. One of the most obvious
externalities is the COVID-19 pandemic which began in March 2020, and triggered a staffing
crisis that exacerbated decades-long mismanagement of the Department’s most important
resource—its staff—which then cascaded into even more problems in many of the areas that
impact jail safety (e.g., failure to provide mandated services which generates frustration; levels
of stress among people in custody and staff which can trigger poor behavior; interruptions in
programming that increase idle time). In addition, recent bail reform enacted by the state has
changed the composition of the jails’ incarcerated population. Individuals with less serious
offenses who previously may have been incarcerated are generally no longer held pending trial.
While this has had the effect of reducing the overall population, it has resulted in a heavier
concentration of offenders with more serious offenses in the jails. Most importantly, these
external factors did not change the City’s obligation to provide safe and humane treatment to
those within its jails, and while important for understanding shifts in the size and characteristics
of the jail population and the resulting dynamics that surround jail safety, they cannot be used to
excuse or defend the City’s and Department’s failure to comply with the Nunez Court Orders and
to provide minimally adequate levels of safety. The constitutional minimum that must be
afforded to all incarcerated individuals has remained the same and continues to be the standard
by which all reform must be measured.
9
The array of quantitative metrics, qualitative assessments, and an appreciation of
externalities mean that discussions about the current state of affairs can be cast in many ways,
many of which are legitimate strategies for understanding the Department’s trajectory. The
choice of comparison points selected, can lead therefore to different conclusions about the
magnitude or pace of progress or the lack thereof. The Monitoring Team has dutifully examined
changes in metrics and patterns in staff behavior from multiple angles in order to gain insight
into the factors that may be catalyzing or undercutting progress. While such explorations are
useful for purposes of understanding and problem-solving they do not replace the overarching
requirement that the Department must materially improve the jails’ safety and operation
compared to the conditions that existed at the time the Consent Judgment went into effect.
Organization of the Report
The report includes the following sections to address the requirements of the Action Plan,
select provisions of the Consent Judgment and the Remedial Orders, and the Court’s June 13,
2023 Order:
• Security, Violence, and Use of Force

• Leadership, Supervision, and Training
• Uniform Staffing Practices
• Management of Incarcerated Individuals
• Staff Accountability – Identifying and Addressing Misconduct
• Department’s Management Structure and Management of the Nunez Court Orders
• Overarching Initiatives Related to Reform
• Conclusion and Monitor’s Assessment Related to § G ¶ 6 of the Action Plan
10
The report includes the following appendices:
• Appendix A includes the data required by the Action Plan, § G ¶4(b) to the extent the
data is not otherwise provided in the report.
• Appendix B includes images from the May 26 2023 Report Incident #1.
• Appendix C includes a chart with the status of the Monitor’s April 2023
Recommendations
• Appendix D includes a transcript of the Department’s Video regarding the Nunez Court
Orders.
• Appendix E is a proposed court order from the Monitoring Team as described in the
Conclusion of this report.
• Appendix F includes a copy of the Commissioner’s May 26, 2023 Letter to the Monitor
• Appendix G includes a disciplinary decision by OATH and the subsequent decisions by
Civil Service Commission described in the Staff Accountability – Identifying and
Addressing Misconduct section of the report.
11
SECURITY, VIOLENCE, AND USE OF FORCE
The jails remain dangerous and unsafe, characterized by a pervasive, imminent risk of
harm to both people in custody and staff. This remains true even though conditions in certain
areas may have improved since the apex of the crisis in 2021. The current state of affairs and
rates of use of force, stabbings and slashings, fights, assaults on staff, and in-custody deaths
remain extraordinarily high—they are not typical, they are not expected, they are not normal.
One of the most disturbing, if not frightening, patterns associated with the internecine violence in
the Department, as observed on video of incidents, is the too-frequent occurrence where staff
cede control of a housing unit to the people in custody housed in those units. Such an abdication
of staff control inevitably leads to negative outcomes. A number of illustrative examples of this
dynamic are described in this report, all of which produced multiple serious injuries with no
intervention or supervision by staff, and in all of which the assailants had unfettered and
uninterrupted access to their victims.
As explained in the Introduction, the world has changed during the eight years that the
Consent Judgment has been in effect, as it does in all cases involving large-scale institutional
reform. While these externalities impact the context within which the jails operate, they are not
the cause of the endemic levels of harm and current lack of safety in the jails nor the cause of
staff’s continued pattern and practice of unnecessary and excessive use of force.
Furthermore, the use of force rate and rates of violence are demonstrably worse than at
the time the Consent Judgment went into effect. Throughout the eight-year period, the jails’
safety has continued to deteriorate in an alarming fashion, producing negative outcomes that
occur far more often than in 2016. In a few areas, recent improvements are evident, but at
12
current levels, the use of force rate and rates of violence are far higher than in any jurisdiction
with which the Monitoring Team is familiar. Department leaders have reported to the Monitoring
Team that staff feel unsafe and/or are unable or unwilling to do their jobs. Some staff report they
would rather be disciplined than do their job as expected. When reviewing videos of incidents,
the Monitoring Team frequently observes an apathetic approach to basic security practices or a
failure to intervene that is all too common in systems where staff feel they are inadequately
prepared for and supported while on the job, feel unsafe, and lack the skills and confidence to
maintain the necessary order without causing an event to escalate. That the Department has
identified this as an underlying cause of poor security practices is positive (i.e., that they are
searching for the source of the problem), but it is also further evidence of the deep inadequacies
of the basic security function of the jails.
This section explores the level of safety in the jails using a variety of measures, both
qualitative and quantitative. Data referenced throughout this section of the report is provided in
Appendix A of this report.
Unnecessary and Excessive Force
The Department’s use of unnecessary and excessive force is at the core of the reforms
required by the Nunez Court Orders. The Monitor, prior to his appointment, 16 found in 2015 that
“the frequency of use of force incidents, including the number of incidents resulting in injuries to
staff and inmates, was unusually high compared to other metropolitan jail systems. [He]
identified instances where staff engaged in excessive and/or unnecessary use of force in violation
16
During the investigation and litigation phase of the Nunez litigation, the Monitor served as Plaintiffs’
expert. During the negotiation of the Consent Judgment, both sides approved his appointment to the role
of Monitor.
13
of the Constitution, including a number of incidents where correction officers delivered blows to
an inmate’s head or facial area or improperly employed force to punish or retaliate against
inmates.” Martin Declaration (dkt. 234), ¶ 6. As outlined in detail below, this finding has not
changed materially during the eight years of the remedial phase or in the past year during the
pendency of the Action Plan. Further, the Department remains in Non-Compliance with the
seminal requirement of the Consent Judgment to implement the Use of Force Policy, § IV, ¶ 1.
As discussed in more detail below, and throughout this report, a pattern and practice of the
excessive and unnecessary use of force remains clearly evident in this system.
In addition to the externalities that have occurred in the world at large (e.g., COVID, bail
reform), an important contextual factor when assessing the Department’s use of force practices is
the fact that the Department routinely shifts its own landscape by closing/re-opening various jail
facilities. EMTC was opened and closed multiple times in 2020 and 2021, and has now remained
open since September 2021. 17 On June 17, 2022 OBCC was no longer used to house people in
custody. However, the annex at EMTC (which has been closed for at least a year) and OBCC are
now slated to re-open in order to house the incarcerated individuals currently housed at AMKC,
and AMKC is now slated to close by August 2023. Ostensibly, facility closures are executed in
response to the changing size of the detainee population, a deteriorating physical plant, or—in
the case of AMKC—because the facility’s physical plant is seen as an obstacle to reform. The
closures and subsequent re-openings may be beneficial in the long term, but they are
destabilizing in the short term. With the closure of AMKC, a massive rehousing effort is
17
EMTC has opened and closed multiple times since 2020. The facility was first closed in March 2020
and was subsequently reopened a few weeks later following the outbreak of COVID-19. EMTC was
closed again in June 2020 but was then re-opened in November 2020. EMTC was closed again in May
2021, but then reopened in September of 2021.
14
currently underway, but the impact of this shift on key outcome measures will not be known for
some time.
The number, average monthly rate of the use of force, and frequency of injuries sustained
from uses of force are examined below, in tandem with qualitative assessments of the
reasonableness of the force used in each incident.
• Number and Rate of Use of Force: The Department’s average monthly use of force rate
from the most recent five-month period (January-May 2023; 9.13) is 25% lower than the
average monthly rate at the apex of the crisis (2021; 12.23) but is 131% higher than the
average monthly use of force rate at the inception of the Consent Judgment (2016; 3.96).
• Injuries Sustained from Use of Force: The proportion of uses of force that resulted in
serious injuries during the most recent four-month period (January-May 2023; 4%) is
lower than the proportion at the apex of the crisis (2021; 6%), but higher than the
proportion at the inception of the Consent Judgment (2016; 2%). More importantly,
because the number of uses of force has increased so substantially since 2016, these
proportions translate to a significant increase in the number of people who sustain serious
injuries during use of force events (e.g., 74 in 2016, compared to 434 in 2022).
• Monitoring Team Assessment of Use of Force Incidents: The Monitoring Team’s
ongoing, contemporaneous review of all use of force incidents in 2023 indicates that
neither the seriousness nor the frequency of the excessive use of force has abated. This
finding is present in each of the Monitor’s Reports to date which are replete with
15
descriptions of staff’s pervasive excessive and unnecessary use of force. 18 For instance,
the Monitoring Team’s analysis of COD reports of UOF incidents for the two-week
period of June 2-15, 2023 reflected 89 uses of force occurring during escorts. This is an
extraordinarily high number suggesting a significant level of basic security failures. This
analysis also identified 30 uses of force occurring during searches. Again, this is a very
high number which likewise indicates security management failures. The Department’s
failures to improve general security practices and inadequate search procedures and to
address the use of painful escorts are discussed elsewhere in this report and, in many
cases, are contributory factors in situations where the use of force was avoidable and thus
unnecessary. The Monitoring Team’s qualitative assessment of recent use of force
incidents also indicates that the proportion of incidents involving the excessive and/or
unnecessary use of force is currently the same, if not higher, than the proportion of
incidents involving the excessive and/or unnecessary use of force that was observed at
the time the Consent Judgment went into effect in 2016.
• Consultation on UOF Related Policies: The Department has inexplicably failed to
consult or advise the Monitoring Team when it has considered or made changes to
tactics. First, as described in the Monitor’s June 8, 2023 Report, the Department did not
consult the Monitoring Team about its intention to utilize soft-hand force in response to
court refusals (see pgs. 34 to 35). The Department reports it now intends to advise the
Monitoring Team, after the filing of this Report, about its use of force related to court
refusals. Second, as discussed in the Management of People in Custody section of this
18
See, for example, Monitor’s March 16, 2022 Special Report at pgs. 39 and 40; Monitor’s October 28,
2022 Report at pgs. 2, 61, and 117, and Monitor’s April 3, 2023 Report at pgs. 3, 127, 128, 137, 138, and
166.
16
report, the Department did not consult the Monitoring Team about its decision to utilize
three-point restraints with all ESH Level 1 participants in May and June 2023. The
Department subsequently rescinded the policy in late June, explaining it was rescinded
because the Monitoring Team was not consulted on the policy and that the Department
did not intend to utilize the practice anymore. However, the Commissioner subsequently
directed that the policy be reinstituted on July 4, 2023 as discussed in the Management of
Incarcerated Individuals section of this report. The Monitoring Team was again not
consulted on the change in policy, but was advised the policy was reinstated on July 5,
2023.
• Head Strikes: Given the significant risk of harm associated with the tactic, Department
policy and sound correctional practice dictate that head strikes should not be used absent
an imminent threat of death or serious bodily injury to staff or other persons present. The
Department has an extensive history of utilizing head strikes in situations where it is not
merited. 19 Since the Consent Judgment went into effect, the use of head strikes has ebbed
and flowed, but remains extremely high and the tactic continues to be used in situations
when it should not be used. The Monitoring Team’s assessment of incidents from 2022
revealed that Department staff utilized head strikes almost 400 times. By comparison, the
Los Angeles County jail system, which is also struggling to reduce its use of force (and is
currently subject to litigation), utilized head strikes 52 times during calendar year 2022,
19
See Monitor’s 1st Report, pg. 68; see Monitor’s 2nd Report, pg. 4, pgs. 10-11, pg. 12, pg. 110; Monitor’s
3 Report, pgs. 12-16 and pgs. 127-128; Monitor’s 5th Report, pg. 18-21; Monitor’s 7th Report, pg. 24;
rd
Monitor’s 8th Report, pg. 3-5 and pg. 151; Monitor’s 9th Report, pgs. 31-32; Monitor’s 10th Report, pg. 25;
Monitor’s 11th Report, pg. 4; Monitor’s September 23, 2021 Letter to the Court, pg. 3; Monitor’s June 30,
2022 Status Report, pg. 15.
17
and has a population larger than the Department’s. 20 Thus far in 2023, the Department’s
use of head strikes remains high — in a recent two-month period, staff used head strikes
69 times.
• Suspensions for UOF Related Misconduct: Nearly 60 staff were suspended for use of
force policy violations during the first five months of 2023. The Department’s
improvement in the last few months in identifying misconduct and taking immediate
action in response to these violations is laudable, though the Monitoring Team continues
to find that misconduct that is unidentified and unaddressed remains a consistent
problem, as described in more detail below. Most importantly, the fact that such a large
number of staff engaged in use of force misconduct serious enough to warrant suspension
during just a five-month period, despite the Department’s ongoing inadequacies in
identifying misconduct, is another indicator that harmful staff practices continue to be
endemic in this Department. The misconduct that resulted in these suspensions reflects
staffs’ inappropriate use of head strikes, chokeholds, kicks, and body slams; use of racial
slurs; failures to intervene; and staff having abandoned their posts. Some of these actions
by staff against people in custody were retaliatory, punitive, and designed to inflict pain.
Moreover, there is evidence that staff have been complicit in causing or facilitating
assaults among people in custody. Many of these cases appear to involve misconduct that
likely would require the Department to seek termination of these individuals pursuant to
§ VIII, ¶ 2(d) of the Consent Judgment. Such incidents in well-run systems should be
20
See Meg O’Connor, LASD Says It Wants to Keep Hitting People in the Head, THE APPEAL,
https://theappeal.org/lasd-los-angeles-jails-aclu-rosas-luna-head-strike/?utm_source=TMP-
Newsletter&utm_campaign=404ab2c6ce-
EMAIL_CAMPAIGN_2023_06_29_10_58&utm_medium=email&utm_term=0_5e02cdad9d-
404ab2c6ce-%5BLIST_EMAIL_ID%5D.
18
isolated and rare, but they appear to be near commonplace in this Department. In the
Monitoring Team’s experience, the frequency of such serious misconduct during just a
five-month period is unprecedented. A chart of all suspensions is included in Appendix A
of this report.
• Department’s Assessment of Use of Force Incidents: Additional indicators of the
prevalence of unnecessary and excessive force can be found in the findings of facility
leaderships’ Rapid Reviews and the Investigation Division’s findings.
o Rapid Reviews: Rapid Reviews detect misconduct close-in-time to the incident,
but are not as consistent and reliable as they should be. 21 Even with the under-
identification that occurs via the Department’s internal analysis, the Rapid
Review data reveals pervasive problems with staff’s ability to apply the requisite
skill set and decision-making needed to effectively decrease the rate at which
force is used. This includes, but is not limited to, failures to secure cell doors or
food slots, to escort individuals in proper restraints, to supervise large groups of
people in custody, to remain on post, to enforce mandatory lock-in, and to follow
proper guidelines for anticipated uses of force, as well as the improper use of
chemical agents at close range or in a retaliatory manner. Staff also frequently
exhibit unnecessarily confrontational demeanors (particularly during searches).
Some of these failures directly contributed to the circumstances that facilitated the
incidents and subsequent uses of force. For instance, cases involving unmanned
21
The Monitoring Team’s assessment of the findings of the Rapid Reviews has been mixed. While Rapid
Reviews conducted in 2022 showed some improvement in identifying misconduct (as noted in the
Monitor’s April 3, 2023 Report), the Monitoring Team’s assessment of Rapid Reviews completed in 2023
revealed that certain issues (such as identifying that an incident was avoidable and therefore should not
have occurred) are not reliably identified. For this reason, Rapid Review data underestimates the
prevalence of misconduct and leaves certain problems undetected and unaddressed.
19
posts and off-post staff have resulted in a number of uses of force; almost 50% of
which the Rapid Reviews found were avoidable. 22 Furthermore, facility
leadership determined that 12% of incidents that occurred between January and
May 2023 were avoidable and therefore would not have occurred if staff had
utilized sound correctional practices including security-related actions,
interpersonal communication and conflict resolution skills.
o ID Findings: ID’s closed Intake Investigations from January to April of 2023
found 14% of those cases were “unnecessary,” “excessive,” and/or “avoidable.” 23
Fourteen percent is a high prevalence rate, particularly given that these Intake
Investigation results do not account for the results of Full ID Investigations or the
fact that ID does not consistently or reliably identify all misconduct. The
percentage of cases that fit in this category is certainly higher than this data
reflects.
As described throughout this report, the Department’s ability to identify and address
unnecessary and excessive force is a key component to the reform effort. A recent use of force
incident (first identified in the Monitor’s May 26, 2023 Report as Incident #1 24) illustrates
concerns about the Department’s ability to identify and address particularly concerning incidents.
22
More detailed data is available in Appendix A.
23
The Department and the Monitoring Team have not finalized an agreed upon definition of these
categories. The definition of these findings and the development of corresponding data is complex,
especially because it requires quantifying subjective information where even slight factual variations can
impact an incident’s categorization. A concrete, shared understanding of what these categories are
intended to capture is necessary to ensure consistent assessment across the board. While efforts were
made in summer 2021 to finalize common definitions, they were never finalized, and the effort has since
languished given the focus on higher priority items last year. Also, this categorization process has not
been expanded to Full ID Investigations.
See Monitor’s May 26, 2023 Report at pgs. 2 to 4; Monitor’s June 8, 2023 Report at pgs. 45 to 46;
24
Monitor’s June 12, 2023 Letter to the Court (dkt. 546) at pg. 2 to 4 and 10 to 11.
20
Key facts of the incident are summarized below. Illustrative images of both uses of force
incidents are included in Appendix B of this report.
• May 26, 2023 Report Incident #1: On May 11, 2023, an individual was left
unattended in the elevator by a staff member while escorting a large group of
people in custody, and eventually exited out of the elevator and moved through a
gate which staff had left unsecured. A large cadre of staff was immediately on the
scene, including two captains. The individual was encircled with staff (10 plus
officers) as he stood with his hands at his side. The individual then stepped
forward and an officer abruptly reached over the captain to initiate a takedown.
One captain pushed/shoved his way through the officers toward the individual.
Staff then descended and swarmed the individual and very forcibly took him to the
floor. During the melee, the captain literally fell into the pile of officers engaged
in the takedown. Once the individual was in restraints, the probe team arrived,
placed the individual on a gurney and took him to intake where he was walked to
the search area. After the search, staff attempted to assist him in putting on his
shoes, which he could not do independently because he was rear-cuffed and in leg
shackles. The individual’s leg jerked towards the helmet of one of the officers who
was in full protective gear. Multiple staff then took the individual to the floor,
face-down on the floor with his head near a metal bench and staffs’ hands on his
arms and back. The probe team lifted the individual off the ground, and he
appeared unable to support his own body weight. As the probe team lifted and
lowered the individual, his head hit a plastic container, the leg of a partition, and
then the concrete floor. The individual’s body was limp as the probe team lifted
the individual up and placed him on a gurney. Spots of blood were also visible on
the floor below the bench and next to the partition where the person in custody’s
head was on the floor. The probe team escorted the individual to the clinic and
into a medical exam room where he was seen by medical staff. The use of force
incident was classified as a Class A incident given the injuries sustained by the
person in custody. The individual was subsequently taken to the hospital and has
since undergone three surgeries and is now paralyzed from the neck down.
This case involves numerous reporting, security and operational failures including use of
force tactics that were excessive given the extant threat. Further, the Commissioner’s and other
Department leaders’ assessments of this incident are emblematic of the pretextual claims about
the appropriateness of staff’s behavior that brought about this case to begin with and are at the
heart of the culture of impunity that Nunez intends to address.
• Staff’s failure to properly supervise those in the elevator and leaving the security
gate unsecured are precursors to what followed. Had proper practice been
employed, the entire incident could have been avoided, but instead, these errors
21
led to a cascade of harm suffered at the hands of staff.

• The Commissioner characterized this event an “escape attempt,” 25 which obscures
the reality of the situation and overstates the nature of the threat. None of the staff
reports claim it was an escape nor was it labeled as such by the Department’s
preliminary investigation. The Monitoring Team’s review of incidents routinely
identifies individuals in custody who run away from staff (e.g., down corridors,
out of vestibules, etc.) during the course of an incident – none of which has the
Monitoring Team ever seen described as an escape. This type of exaggeration
contributes to a culture that encourages staff to overreact and to apply overly
aggressive responses to typical, non-threatening conduct.
• The Commissioner characterized the action of the individual who was in full
restraints as an “assault on staff.” 26 This overstates the severity of the
individual’s behavior, and thus contributes to a culture in which staff apply
unnecessary levels of force.
• Taking the individual to the ground was out of proportion to the extant level of
threat, particularly since the individual’s legs were restrained and his hands were
restrained behind his back which limited not only his ability to assault someone,
but also the ability to break his fall. Staff are required by policy to “use the
minimum amount necessary to stop or control the resistance or threat encountered
and it must be proportional to the resistance or threat encountered.” The
Department’s training highlights the risk of injury present in any restraint, and
specifically notes that takedowns are a serious escalation of force.
• The incident was reported via the COD, which was updated multiple times, but
the second use of force was not reported, and the COD was never updated to
document the individual’s serious injury or transport to the hospital. This has
obvious ramifications to the extent to which the Department’s data inaccurately
represents the frequency of events and injuries that occur in the jails.
• As the Monitoring Team attempted to initially learn what occurred, a senior
Department leader made unequivocal claims about the cause of injury that turned
out to be inaccurate and did not reflect the facts available to the leader at the time.
The individual also did not relay the litany of operational concerns that had been
detected to the Monitoring Team, which obfuscated the full extent of the issues
presented by this incident. 27
25
See Dean Moses, EXCLUSIVE| Correction commissioner, Mayor Adams show Rikers Island security
videos in effort to counter federal monitor’s claims of misdeeds, amNY, https://www.amny.com/police-
fire/rikers-island/exclusive-correction-commissioner-mayor-adams-show-rikers-island-security-videos-in-
effort-to-counter-federal-monitors-claims-of-misdeeds/.
26
See, id.
27
See June 8, 2023 Report at pgs. 45 to 46.
22
• Public statements by the Commissioner also underplayed the role of staff

misconduct in the tragic outcome. In media reports “the Correction Department
maintain that the videos demonstrate that their officers did not employ
unnecessary use of force or acted inappropriately.” 28 Further, the Commissioner
claims “…preliminarily the actions of those officers I think, when I look at the
moment of what those officers’ decision-making had to make in that moment,
preliminarily I don’t find concerning as of yet, but the investigation is ongoing.” 29
These assertions belie the facts that the Rapid Review determined that the incident
was “avoidable,” and that the Department took immediate corrective action
against five staff, including staff discipline for improper escort, failure to secure a
gate, failure to report the severity of the injuries, and failure to report the
individual’s transport via EMS. It is also notable that no less than eight of the staff
participants had histories of use of force misconduct and related charges.
This incident is but one example of the Department’s continued efforts to minimize
staff’s culpability in such tragic outcomes and to ignore its duty to identify such conduct for what
it is—poor security practices that elevate, rather than minimize, the imminent risk of harm to
people in custody. There is a disturbing disconnect between the Department’s obligation to
confront and correct poor staff practice and its apparent disregard for what incidents like this
reveal about patterns of staff conduct that may help to explain, in part, why the reform effort has
yet to produce the intended result.
• Illustrative Examples of Use of Force Cases Occurring in 2023: Outlined below are
four cases that occurred in 2023 that illustrate recent poor practices that mirror those
observed throughout the duration of the Consent Judgment and that continue unabated.
These cases are not unique, but rather illustrate the typical patterns and trends observed
by the Monitoring Team over the last eight years.
28
See footnote 25.
29
See June 13, 2023 Emergency Court Conference Transcript at pg. 37, 3 to 7.
23
Image of Illustrative Example 1
o Illustrative Example 1: On March 3, 2023 at the Brooklyn Courthouse, a fully

restrained PIC, wearing both front cuffs and leg shackles, refused to enter a
search pen by standing in the doorway. A Captain instructed officers to push the
PIC into the search pen, and as officers were pushing him into the pen, one
officer wrapped his arm around the PIC’s neck in a chokehold. This officer
leaned back, taking the PIC to the floor. It is noteworthy that the PIC was unable
to break his fall because he was fully restrained, and his body hit the floor next to
a metal bench with a high impact. When the PIC hit the ground, there were two
officers on top of him. The supervising Captain and multiple other officers told
the officer who used the chokehold to stop repeatedly, but he continued to hold
and hit the PIC’s head while he was on the ground for a few seconds. Both the
officers on top of the PIC got up, and all staff then quickly exited the pen, and
closed the door. After the incident, one officer can be repeatedly heard saying
“Good job.” The PIC refused medical attention but displayed no visible injuries
and no staff formally reported injuries to the COD. The officer was suspended for
30 days because of the prohibited hold. None of the staff reported the chokehold
in their use of force or witness reports. The officer who used a head strike did
note that he used a closed fist strike to the PIC’s facial area, but he claimed it was
inadvertent and he was aiming for the PIC’s torso. None of the other staff
mentioned the officer’s use of head strikes in their use of force or witness reports
either. These officers received formal disciplinary charges for failing to report the
chokehold and head strikes, and these charges are currently pending with the
Trials Division. The officer who used the choke hold and head strikes also
24
received formal disciplinary charges for failing to turn on his body-worn camera,
and these charges are also pending with the Trials Division. The facility
supervisor who conducted the Rapid Review only noted that the officer used an
“unauthorized force technique” and did not specifically mention the chokehold or
head strikes; the Rapid Reviewer also reported that the staffs’ actions were in
compliance with the Department’s Use of Force Directive.
o Illustrative Example 2: On January 3, 2023 in NIC, an officer arrived at a PIC’s

cell door and opened the cuffing slot to pass food to the PIC inside. Unsecured
cuffing slots can be observed within the housing unit. The PIC reached his arms
through the cuffing slot and splashed the officer with an unknown liquid. The
officer reached his arm through the cuffing slot and deployed a 5-second burst of
OC spray towards the PIC inside, who ran towards the back of the cell. In his Use
of Force report, the officer reported that he used chemical agents for 1-3 seconds.
The Investigation Division determined that “use of chemical agents was
excessive, unnecessary, and retaliatory as the PIC was secured inside a cell and
[the officer] had alternatives to force, such as departing the area.” The officer
was suspended for 15 days and currently has formal disciplinary charges pending
with the Trials Division for this use of force. After the OC deployment, the officer
then entered the PIC’s cell and walked towards the PIC, though what occurs in
that brief moment is not visible on surveillance camera angles, and then leaves
the cell. Just over a minute later, the same officer reentered the same PIC’s cell,
followed by a Captain. They walk towards the PIC at the back of the cell, again
not visible on surveillance camera. The Captain quickly leaves the cell, failing to
supervise by leaving the officer unattended in the PIC’s cell for around 15
seconds before they both exited the housing area. The PIC alleged that the officer
punched and stabbed him within his cell. Both times that the officer entered the
cell, he should have activated his Body Worn Camera, but failed to do so. The
Captain noted that he observed the officer “engaged in a physical struggle” with
the PIC, but provided no further detail. Despite the Captain’s witness report, the
officer did not mention using force on the PIC within the cell in his report. In his
Use of Force Report, the officer only stated that the PIC was physically resistant
when he tried to secure the PIC in restraints, yet claimed that he sustained a
“sprained wrist, thumb, middle and pinky fingers” from trying to secure the PIC.
Because the officer failed to mention the force he used within the PIC’s cell, he
was referred for a retraining in report writing. Around 10 minutes after the staff’s
use of force, 6 ESU members arrive to remove the individual from his cell. In late
2022, the same officer was found guilty of formal disciplinary charges and
25
received 15 suspension days for deploying chemical agents through a PIC’s

cuffing port after a splashing incident in May 2021.
o Illustrative Example 3: On February 3, 2023 at RMSC, a captain and officers

responded to an individual that was in the vestibule area. The captain had the A
Station door open while the PIC was unsecured in the vestibule. Staff were talking
to the PIC when one officer attempted to grab the PIC’s arm and she pulled away.
A struggle began, and other officers arrived. A total of seven officers were in the
area, and the breaker gate was left open. As depicted in the photo above, one
officer appeared to be twisting and bending the PIC’s arm and wrist as he pulled
it behind her. The PIC struggled and the officer aggressively pushed her to the
wall. The PIC swung her arm towards the officer’s head, and another officer
deployed chemical agents towards the PIC’s face. Two more officers arrive at the
still-open breaker gate. It appears the OC is taking effect on the PIC, when two
officers aggressively took her to the floor, falling on top of her, then applied
restraints. The PIC was brought to her feet and escorted from the area. Two
officers appeared to be applying pressure to the PIC’s wrists during the escort,
even though the PIC was not resisting the escort. The PIC sustained a Class A
post concussive syndrome requiring a CT scan.
26
o Illustrative Example 4: On June 7, 2023 in GRVC, there were multiple PICs in

the barber shop, some without any restraints, and others in full restraints with
mitts. One PIC who was restrained to a barber chair was repeatedly getting up
and down in his chair and verbally arguing with staff. An excessive number of
staff arrived on scene for a total of 15 or more uniformed staff in the barber shop,
as depicted in the photos above. The PIC continued to verbally argue while
restrained to the barber chair but is eventually rear-restrained and escorted out
of the barber shop without force. The bulk of the staff left with this PIC, leaving 5
uniformed staff remaining in the barber shop with no supervisors. After these staff
left, another PIC appeared to verbally argue with officers. This PIC was not
restrained to the chair, but was in full restraints, including front cuffs with mitts
and leg shackles, and had an officer standing on both sides of him. The PIC
appeared to make a spitting motion in front of an officer, and a few moments
after, the officer charged towards the PIC, punching his head and pushing him
into the chair. The officer continued to throw multiple closed fist strikes at the
PIC’s head and torso while the PIC remained in the chair. Staff pulled him away
from the PIC, while three other staff grabbed the PIC’s arms and torso and
brought him to the ground. While the PIC was on the ground, more staff arrived,
including a supervisor, and placed him in rear restraints and a spit hood. Staff
then assisted the PIC to his feet but physically struggled with the PIC, pushing
him against a nearby locker and pulling on his arms and rear restraints before
they escorted him out of the barber shop. The officer who used facial strikes
27
stated in his Use of Force report that he was attempting to strike the PIC in the
chest but missed and made contact with the chair; he did not mention any other
strikes made towards the PIC even though other strikes were observed on video.
DOC staff’s initial review of the incident noted the officer’s use of facial strikes
on a restrained PIC and recommended him for suspension. He was suspended for
10 days, and it was noted that the officer’s use of force was avoidable as he had a
means of egress after the PIC spat at him.
Staff Reporting of Incidents
In order for the Department to address the issues that occur within the facilities, they first
must be reported (i.e., every incident must be reported) comprehensively (i.e., must provide all of
the salient facts in language that describes, rather than labels, the behavior of every actor
involved). The most troubling incidents are those that staff do not report because none of the
individuals or structures responsible for assessing and improving staff practice can access the
facts surrounding the incident and because neither people in custody nor staff can be held
accountable for any misconduct.
The Monitoring Team has identified a number of recent incidents in which staff reports
were either not generated at all or were completed after a significant delay. In at least one case, it
is unclear whether the incident would have been reported at all but for subsequent events and
inquiries by the Monitoring Team. 30 For example, staff reporting practices in at least four of five
incidents that occurred during a nine-day period in May 2023 (as first reported in the Monitor’s
May 26, 2023 Report) raised concerns about the veracity with which staff consistently report
incidents involving serious injuries. In one instance, a self-harm incident (which later resulted in
the individual’s death) was reported 33 hours after the incident occurred. In another, an
individual suffered serious injuries that ultimately resulted in the individual’s death and the only
30
See Monitor’s May 26, 2023 Report at pgs. 6 to 8 regarding Incident # 3.
28
staff report regarding the event was a handwritten logbook entry about the hospital run. In yet
another incident, serious injuries sustained by a person in custody in intake were not reported
until 69 hours after the incident occurred and only after the Monitor brought the incident to the
Department’s attention. Four assailants in this incident were subsequently charged with assault
by the Bronx District Attorney’s Office. Finally, in another incident, staff failed to report one of
two uses of force that occurred involving the same individual and did not report the nature of the
individual’s injuries. As of the drafting of this report, Department records regarding this second
use of force still have not been updated to reflect these facts.
In addition to these reporting failures identified in May 2023, in June 2023, the
Monitoring Team also identified at least five stabbing/slashing incidents that were reported in
part, but which failed to properly categorize the stabbing/slashing that occurred during the event.
Specifically, the Monitoring Team’s video review of incidents revealed that five stabbings or
slashings occurred, but were not reported to the Central Operations Desk as a stabbing or
slashing. 31 In each case, the initial report of the incident was classified as a use of force or
serious injury and failed to document a stabbing or slashing that was evident via the Monitoring
Team’s review of objective evidence (e.g., video footage or injury reports). As a result, the
Department’s stabbings/slashings data does not include these incidents and therefore
underreports the number of events that have occurred. Further, the Monitoring Team’s findings
are not exhaustive; additional stabbings/slashings might not have been properly reported and/or
coded and thus not included in the data the Department provides to the Monitoring Team for its
analysis and is included in this report.
31
These incidents occurred on January 2, 2023 (2 incidents), January 25, 2023, January 27, 2023, and
June 8, 2023.
29
Staff’s failure to report and/or properly categorize incidents leads to a number of
interrelated problems that go to the heart of the Nunez Court Orders as outlined below:
• Key metrics used to identify progress, or the lack thereof, become distorted when incidents
are not properly reported/categorized, potentially underestimating the frequency of the use of
force and facility violence.
• Agency and facility leaders’ efforts to understand the nature of the problems (e.g., frequency,
location, underlying causes and contributing factors) are undercut because they operate with
an incomplete/inaccurate data set. This skews the problem-solving effort in a way that may
render any solutions ineffective, because they were not informed by the total universe of
events and thus may not target the relevant dynamics.
• Accountability measures for people in custody and staff cannot be applied if the
behavior/misconduct is not properly documented. The failure to hold people accountable for
violent behavior or for staff misconduct allows both types of behavior to continue unabated,
perpetuating the imminent risk of harm in the jails.
Each of these problems has an obvious impact on the Department’s ability to address the
unsafe conditions in the jails, and thus staff’s failure to timely and/or accurately report incidents
weakens the entire reform effort in a very direct and consequential manner.
In the Monitoring Team’s experience, the failure to report these types of incidents is
cause for serious concern, especially given the egregious nature of the incidents discussed above.
These were not isolated cases. The City’s and Department’s suggestion that the May 2023
incidents are not factually similar and therefore do not reflect a pattern fails to appreciate the
universal need for comprehensive, accurate staff reporting. All cases have a unique set of facts,
30
but, what ties these cases together is that all of these incidents should have been reported, but
were not, reporting were significantly delayed, or reports omitted key facts, which is particularly
concerning given their serious nature. Staffs’ failure to adhere to reporting requirements for even
the most serious events calls into question the overall veracity of reporting and commitment to
transparency within the agency.
Security Initiatives
Given the lengthy record of inadequate staff practice in each area, the Action Plan
includes various requirements to improve security practices, the use of response teams, intake
practices, and the response to self-harm events. An update on the Department’s efforts to address
these requirements is shared below.
• Security Plan: 32 The Monitoring Team has established a lengthy, detailed record of the
deficiencies in staff’s basic security practices. 33 To date, and over 20 months since the
Second Remedial Order (which required a Security Plan to address specific security-
related problems) was entered, the Department has not meaningfully implemented
sustainable solutions to any of the identified problems such as unsecured doors,
abandonment of a post, key control, post orders, escorted movement with restraints when
required, control of undue congregation of detainees around secure ingress/egress doors,
proper management of vestibules, and properly securing officer keys and OC spray. The
32
As required by the Action Plan, § D, ¶ 2(a) and the Second Remedial Order, ¶ 1(a).
33
See Martin Declaration (dkt. 397), Exhibit E “Citations to Monitoring Team Findings re: Security
Failures” and Monitor’s December 12, 2021 Report at pgs. 17 to 23, Monitor’s March 16, 2022 Report at
pgs. 7 to 30; Monitor’s April 27, 2022 Report at pgs. 2 to 3; Monitor’s June 30, 2022 Report at pgs. 13 to
17, Monitor’s October 28, 2022 Report at pgs. 56 to 77; and Monitor’s April 3, 2023 Report at pgs. 36 to
63.
31
Department’s own audits conducted by NCU between January 2022 and May 2023 34
have not demonstrated any improvement in this period of time with basic security
practices including staff being off post, cell doors being manipulated/unsecured,
inadequate touring practices, poor enforcement of lock-in, or poor movement of
individuals in custody. Over half of NCU’s 2022 and 2023 audits found staff off post,
cell doors unsecured and issues with staff touring the housing units. Further, the
Department’s Rapid Reviews identified procedural errors (e.g., failure to secure doors,
failure to properly apply restraints) in 41% of incidents that occurred from January to
May 2023.
NCU’s findings, which are consistent with findings from the Monitoring Team’s
site visits and incident reviews, reveal that many housing areas have multiple security
lapses at once including unsecured doors, individuals congregating in prohibited areas out
of staff view, and lock-in not being enforced. Because many housing areas lack proper
supervision and control by staff, people in custody consequently exercise an unacceptable
level of control within these areas. For example, access to cells is supposed to be afforded
to people in custody at specific times during a staff member’s tour. However, people in
custody frequently demand access whenever and to whichever cells they choose, with
little or no resistance from staff. This wholly inappropriate imbalance of authority is often
directly related to safety risks that lead to dangerous incidents and uses of force. Recent
34
NCU issued 107 security reports between 2022 to May 2023. In 2022, NCU issued 91 reports, 67% of
which found staff off post, 69% found unsecured doors, 58% found issues with staff tours, 52% found
lock-in was not enforced, and 26% found crowding or unauthorized areas. From January to May 2023,
NCU audited various housing areas in four facilities and issued 16 reports. These reports identified
numerous security issues. Specifically, 63% of reports found staff off post, 88% found unsecured doors,
69% found issues with staff tours, 25% found lock-in was not enforced, and 44% found crowding/access
to unauthorized areas. While covering only the first five months of the year, these findings were either
similar or worse to the NCU audit findings from 2022.
32
incidents at GRVC and at RNDC (discussed in more detail below) illustrate the troubling
outcomes that result. In these cases, incarcerated individuals were seriously assaulted by
other people in custody and in each of these incidents, staff ceded control of the housing
areas to the incarcerated population, who were allowed to congregate and enter cells at
will to carry out these assaults.
• Intake: 35 The conditions within Intake have been subject to significant scrutiny, multiple
Remedial Orders, and motion practice before the Court. Efficiently processing
individuals through intake and reducing the use of intake units to manage the aftermath of
use of force events are critical to improving the level of safety and reducing the use of
force within intake units.
The overall number of uses of force occurring in the jails remains exceedingly
high, but the proportion of uses of force occurring in intake units has decreased slightly
over the past few months.
Uses of Force in Intake

2023
2018 2019 2020 2021 2022
(Jan. to May)
# of Uses of Force in Intake 913 1123 992 1483 963 309
Total # of Uses of Force 5901 7169 6197 8184 7005 2718
% of UOF Occurring in Intake 15% 16% 15% 18% 14% 11%
This slight decrease in the proportion of uses of force that occur in intake is
encouraging, nonetheless serious problems remain with respect to the level of safety in
the Department’s intake units. The Monitor’s May 26, 2023 Report and June 8, 2023
Reports discussed two serious incidents that occurred in intake units: Incident #3 (where
an individual was the victim of a violent assault and lay naked in an intake cell for over
35
As required by the Action Plan, § D, ¶ 2(b) and the Second Remedial Order, ¶ 1(c).
33
three hours before receiving medical care) and Incident #5 (where an individual was
subject to prolonged mechanical restraint and may not have been appropriately
supervised while in an intake pen). These incidents raise serious concerns about the
management of individuals in new admission intake and the Department’s ability and
commitment to ensure safety and to provide adequate supervision, timely medical care,
and accurate reporting. Intake processing is discussed in more detail in the Management
of People in Custody section of this report.
• Reliance on and Composition of Emergency Response Teams: 36 The Monitoring
Team has long raised concerns about the Department’s overreliance on and the conduct
of Emergency Response Teams, including those that are composed of facility staff
(“Probe Teams”) and specialized units that respond system-wide (Emergency Services
Unit or ESU; Strategic Response Team or SRT; and Special Search Team or SST). 37
The Department’s data suggests that it is relying on Emergency Response Teams
less often. First, the overall rate of alarms (including Level A, in which a Supervisor or
other staff near the location respond in an effort to resolve issues without using physical
force and Level B, where an Emergency Response Team is activated) decreased nearly
70% between 2020 (rate 16.8) and the first part of 2023 (rate 5.2). 38 In addition to having
fewer alarms altogether, Level B alarms comprised an increasingly smaller proportion of
all alarms (from 79% in 2020 to 49% in the first part of 2023). This data suggests that the
36
As required by the Action Plan, § D, ¶ 2(c) and the First Remedial Order, § A, ¶6.
37
These concerns have been extensively laid out in the 11th Monitor’s Report at pgs. 38 to 50 and 116 to
120, Monitor’s 12th Report at pgs. 49-51, the Monitor’s Second Remedial Order Report at pgs. 3-4, and
the Monitor’s April 3, 2023 Report at pg. 137 to 143.
38
The average monthly rate of events is calculated using the following formula: (number of
incidents/number of months)/ADP x 100.
34
Department is resolving situations more often without the use of response teams. This
trend is also evident in the 80% decrease in the rate of Level B alarms between 2020
(13.3) and the first part of 2023 (2.6).
Number of Alarms
January 2020-May 2023
2020 2021 2022 2023 (Jan-May)
# % total # % total # % total # % total
TOTAL 9,145 100% 6,860 100% 4,257 100% 1,559 100%
Level A 1,894 21% 2,264 33% 1,888 44% 799 51%
Level B 7,249 79% 4,597 67% 2,369 56% 760 49%
Average Monthly Rate of Alarms

January 2020-May 2023
2020 2021 2022 39 2023 (January-May)
Avg Avg/ Avg/ Avg/

# ADP Rate # ADP Rate # ADP Rate # ADP Rate
/mo mo mo mo
All 9,145 762 4,544 16.8 6,860 572 5,574 10.3 4,257 355 5,639 6.3 1,559 312 5,940 5.2
Level
1,894 158 4,544 3.5 2,264 189 5,574 3.4 1,888 157 5,639 2.9 799 160 5,940 2.7
A
Level
7,249 604 4,544 13.3 4,597 383 5,574 6.9 2,369 197 5,639 3.5 760 152 5,940 2.6
B
These trends are clearly positive—with fewer alarms overall and a decreasing
proportion of Level B alarms, there are fewer opportunities for the types of egregious
misconduct that have generated the concern about the use of response teams. That said,
the Monitoring Team’s review of incidents still reveals the unnecessary deployment of
Emergency Response Teams in situations where staff should have been able to resolve
the incident without using force, and also reveals the continued hyper-confrontational
39
There was a calculation error in the previous reporting on alarm data (dkt. 517 at p. 138). It was
previously reported that there were 4,763 alarms in 2022, but this error has been corrected and the total
number of alarms in 2022 was 4,257.
35
behavior among Emergency Response Team members that causes situations to escalate.
Both issues require continued improvement, and are illustrated in the below example.
o Illustrative Example 5: On February 26, 2023 at GRVC a PIC who was lying on
the floor of the top tier, appeared to be making slight movements, but may have
been somewhat nonresponsive. The PIC remained on the floor as the SRT team
entered the housing unit. The officer and another PIC left the PIC lying on the top
tier and moved to the stairs. PICs were milling around in the housing unit and
began covering their faces. It appears they were refusing orders to lock in. One
PIC tried to walk down the stairs to the common area of the housing unit, and
SRT staff deployed chemical agents and took him to the ground. The one PIC
remained lying on the top tier floor and appeared to speak to other PICs but did
not stand or exhibit much movement. Upon their arrival to the housing unit, SRT
did not check on this individual. As depicted in the image above, an SRT Captain
deployed an OC grenade in the middle of the housing unit even though the PICs
were not advancing and were walking away from the SRT staff. More chemical
agents were deployed to the upper tier even though the PICs were not advancing
there either. The nonresponsive PIC was still lying on the upper floor tier and
was seen holding his hand over his chest and coughing. Another PIC appeared to
assist him and turned his body on his side. SRT staff eventually walked up to the
36
upper tier approaching the PIC lying on the floor. A captain repeatedly sprayed
the two PICs, even though no threat was observed. The PIC that was assisting can
be seen speaking with the officers and pointing to the PIC on the ground. After
multiple deployments of chemical agents, the PIC that was assisting charged
forward towards the SRT officers, and the staff took him to the floor. The
nonresponsive PIC got up and began to move away, but an officer sprayed his
face and back as he was running away. Staff secured both PICs and then escorted
them into cells. While being secured in cells, one PIC was screaming and another
PIC was complaining about a wrist hold used by an officer, though neither
allegations can be confirmed as the video does not depict them within the cells.
While the Department’s data indicates that Emergency Response Teams are
utilized less often, several concerns keep the Department in Non-Compliance with the
First Remedial Order § A., ¶ 6 and the relevant provision of the Action Plan. These
include the ESU/SRT/SST’s policies, practices, leadership, screening, and training. Each
is discussed in turn below.
o ESU Policies: ESU maintains about 10 Command Level Orders (“CLOs”),
including at least two which govern the use of specialized chemical agent tools
(i.e., Pepperball system and the Sabre Phantom Fog Aerosol Grenades). Several
of these CLOs lack sufficient guidance on the tools’ place in the use of force
continuum and need to be revised. The Monitoring Team first shared feedback
with recommended improvements to the policies in August of 2021 and has
repeatedly raised the need to revise the policies with the Department. Given the
Department’s failure to address these recommendations, this issue was included in
the Monitor’s April 2023 Recommendations. Despite repeated claims by
Department leaders that the policies were being updated and would be shared with
the Monitoring Team for review, this has not occurred. Given the longstanding
mismanagement of ESU and the fact revisions to these policies has languished
37
over an extended period of time, this issue is included in the Monitoring Team’s
priority recommendations for the Court to direct the Department to address as
detailed in the Conclusion of this report.
o ESU Practices: As discussed in previous Monitor’s Reports and in the incident
example above, 40 the arrival of ESU/SRT/SST on the scene of an incident
typically guarantees that force will be used, and also brings the risk of a host of
concerning practices. Some of the problems appear to be triggered by the large
numbers of staff who respond, creating a chaotic situation and an excessive show
of force. In addition, many ESU/SRT/SST staff use a hyper-confrontational
approach when interacting with people in custody, which often triggers the very
behavior that a response team should be attempting to resolve or prevent.
Furthermore, ESU/SRT/SST staff often engage in poor security practices such as
painful escort holds which also unnecessarily escalate an already tense situation.
Finally, when these teams are used to conduct searches, the scenes are often
chaotic and disorganized; leading to uses of force that would be avoidable if the
teams’ approach was more coordinated and appropriate.
o Use of Tasers and Grenades: ESU’s taser usage increased significantly
between December 2021 and summer 2022. 41 Once the Monitoring Team
40
These concerns have been discussed extensively in the 11th Monitor’s Report at pgs. 38 to 50 and 116
to 120, Twelfth Monitor’s Report at pgs. 49-51, the Second Remedial Order Report at pgs. 3-4, and the
Monitor’s April 3, 2023 Report at 137 to 143.
41
As noted in the Monitor’s October 28, 2022 Report at pg. 118, ESU began using and displaying the
taser again in December 2021 after a long hiatus, which raised serious concerns for the Monitoring Team.
However, at the behest of the Monitoring Team, significant intervention and individualized training for
ESU by the Commissioner and Security Operations Manager in August 2022 put a stop to the concerning
practices. ESU staff were reminded of the circumstances in which a taser may be used and were cautioned
that tasers may never be used for the purpose of pain compliance.
38
expressed its concern about this emerging problem, ESU essentially
ceased use of the taser, subsequently using the taser in drive or stun mode
only once in August 2022, and displaying the taser once in January 2023.
In 2022, ESU staff also began to use “OC grenades” more
frequently. Ostensibly, OC grenades may be used to gain a tactical
advantage, but ESU’s poor practice further compounds the problem.
Instead of lobbing the device into an enclosed area, closing the door/port,
and giving time for the chemical agent to take effect, ESU squads toss the
device and enter the unit simultaneously. Not only has the chemical agent
not yet taken effect, but the people in custody are able to pick up the
grenade and toss it back toward staff. Subsequent efforts to apply
mechanical restraints and gain control of the situation are thus made more
difficult.
o ESU Leadership: ESU had the same leadership for many years. Given the
ongoing problems with ESU’s conduct and the apparent unwillingness or inability
to change staff practice, the Monitoring Team recommended a leadership change.
The initial attempt to replace ESU leadership was haphazard as discussed in the
Monitor’s June 8, 2023 Report, at pg. 29.
o ESU Screening: An overarching concern regarding ESU’s management is the
selection of ESU staff, particularly the pattern of retaining staff who have been
disciplined for misconduct. The Department’s ESU policy requires routine staff
screening to prevent this situation, but the policy is not being followed reliably. In
39
January 2023, several staff who had been removed from ESU in 2021 42 and who
should not be permitted to serve on the team per policy were reinstated on ESU.
After the Monitoring Team identified the problem, the Department reported that
the staff were subsequently removed from ESU, although as noted in the
Monitor’s June 8, 2023 Report (see pg. 24), this information was later determined
to be inaccurate as some of these individuals remained on ESU/SRT/SST despite
claims to the contrary. The ESU policy also requires routine screening of all staff
to determine whether any disqualifying charges exist. Historically, this routine
screening did not occur, but was started in January 2023. The screening was
poorly executed, causing the Monitoring Team to recommend rescreening and to
provide detailed feedback to ensure the integrity of the rescreening. The
Monitoring Team repeatedly offered to consult with the Department on how it
could revise its procedures, but the Department never engaged with the
Monitoring Team. Instead, just prior to the filing of this report, the Department
provided the Monitoring Team with the outcome of the most recent screening. It
did not provide the underlying documentation that would enable the Monitoring
Team to assess and evaluate the quality of that screening and has not responded to
the Monitoring Team’s inquiry about whether the screening addressed the
Monitoring Team’s detailed feedback. Over many years, the Department has
demonstrated an inability to adequately screen and assign staff to ESU.
Accordingly, this issue is included in the Monitoring Team’s priority
42
See 11th Monitor’s Report at pgs. 44 to 46.
40
recommendations for the Court to direct the Department to address as detailed in
the Conclusion of this report.
o ESU Training: Given the poor practice, ineffective leadership and poor screening
procedures, in April 2023, the Monitoring Team recommended that
ESU/SRT/SST staff receive training to improve practice. The Department’s
training program is wholly inadequate; it fails to address the areas of concern
regarding the practices of these teams as has been reported by the Monitoring
Team for years, the course content itself is inadequate in addressing the skills set
necessary for the work of these teams, and at least some of the course content is
inconsistent with the Department’s own policies and procedures (e.g., the
discussion of Incident Command is not aligned with the Department’s practices
regarding Level A/B alarms). The training materials are rudimentary, and at a
level that is appropriate for an entry-level recruit but falls far short of the depth of
information and nuance needed to elevate the skill-level of the Department’s
“elite squad.” A more detailed discussion of the problems regarding collaboration
and the substance of this training is included in the Leadership, Supervision, and
Training section of this report. As a result of these findings, this issue is included
in the Monitoring Team’s priority recommendations for the Court to direct the
Department to address as detailed in the Conclusion of this report.
o ESU Rapid Review: Previously, internal reviews of ESU’s practices occurred
during the Rapid Review at the facility where ESU responded to an incident.
Because ESU may respond to any of the jails, this facility-based approach meant
that the oversight of ESU’s practice was fragmented and de-centralized and thus
41
lacked appropriate rigor, continuity and efficacy. Beginning in June 2023, a
centralized Rapid Review is now conducted for all incidents in which ESU is
involved. The process is led by the Security Operations Manager and ESU
leadership.
• Searches: 43 In 2022, DOC conducted a total of 196,738 searches (195,348 completed by
the facilities and 1,390 special searches 44). Through May 2023, DOC has conducted a
total of 63,899 searches (63,451 completed by the facilities and 448 special searches).
The Monitoring Team has not observed any change in practice that would suggest the
process or effectiveness of search procedures have improved. 45 Though it is reasonable
that some searches do not result in contraband recovery, the Monitoring Team has found
throughout its comprehensive review of incident reports, investigations, and post-incident
management audits that staff regularly fail to recover weapons during many searches of
housing units and individuals following violent incidents involving weapons. During
review of surveillance videos for violent incidents, the Monitoring Team often observes
persons in custody hiding weapons after an incident occurs, only to watch the responding
staff fail to find these items during their searches. Further, the Department has not
reported any effort to address the Monitoring Team’s June 2021 feedback regarding
enhancements to its search procedures nor has the Department sought to consult with the
43
As required by the Action Plan, § D, ¶ 2(d).
44
These include searches by the Emergency Services Unit, the Special Search Team, the Canine Unit
and/or Tactical Search Operations.
45
See, for example, Monitor’s 3rd Report (dkt. 295) at pgs. 13 to 14 and 128; Monitor’s 6th Report (dkt.
317) at pg. 42, Monitor’s 10th Report (dkt. 360) at pgs. 16, 29, 75; Monitor’s 11th Report (dkt. 368) at pgs.
24; 43-44, 48 and 124; Monitor’s 12th Report (dkt. 431) at pg. 26; Monitor’s March 16, 2022 Report (dkt.
438) at pgs. 22 and 71 to 72; Monitor’s October 28, 2022 (dkt. 472) at pgs. 71-72, 81, 117; Monitor’s
April 3, 2023 Report (dkt. 517) at pg. 54 and 138.
42
Monitoring Team on this issue. Not only does poor search technique contribute to the
prevalence of weapons and other contraband, but it also compounds the Department’s
problems with the use of force. During a two-week period in June 2023, 30 uses of force
were related to searches, comprising about 12% of all uses of force during that period of
time, which is high for a system of this size. The Monitoring Team’s reviews of incidents
have also continued to identify situations in which individuals hid weapons after
incidents and the weapons were not recovered during the search conducted in response to
the incident. As a result of these findings, this issue is included in the Monitoring Team’s
priority recommendations for the Court to direct the Department to address as detailed in
• Weapons and Contraband: 46 Compared to 2021, the volume of contraband recovered
by the Department increased in 2022. In 2022, the Department seized 35% more drugs,
75% more weapons, 168% more escape-related items, and 30% more “other contraband”
than in 2021. Contraband seizures have declined thus far in 2023, particularly the number
of weapons and “other contraband,” as shown in the table below.
Contraband Recovery, 2021-2023 47

2021 2022 Jan.-May 2023
Drugs 1,049 1,423 780
Weapons 3,144 5,539 1,147
Escape-Related Item 196 525 166
Other 878 1,145 402
Total 5,267 8,598 2,495
46
As required by the Action Plan, § D, ¶ 2(e).
47
The method for calculating contraband recovery data varies depending on the type of contraband. For
example, drug contraband is counted by incident, not the actual number of items seized. For example, if
three different types of drugs were recovered in one location, this is counted as a single seizure. In
contrast, when weapons are seized, each item recovered is counted separately. For example, if three
weapons were seized from a single individual, all three items are counted.
43
Any successful effort to remove weapons and contraband from a facility is
obviously positive but the relatively low rate of return (i.e., contraband seized per
searches conducted) and observations of videotaped footage of search technique and
procedure suggests to the Monitoring Team that additional work to refine practice
remains necessary.
Further, the Department reports it has taken steps to reduce the volume of drugs in
the jails. The Commissioner recently touted to the press on June 26, 2023 that “calendar
year to date, we have not had an overdose death.” 48 Tragically, just eight days later, on
July 4, 2023, an individual in custody died of an alleged drug overdose after openly
smoking an unknown substance in the housing unit in the presence of an officer late in
the evening after lock-in was supposed to occur. The Monitoring Team’s routine video
observations also include situations in which individuals in custody are observed
smoking as demonstrated in the picture below:
48
See Robert Moses, Meet the K9 unit keeping Rikers Island safe from drugs, contraband, Meet the K9
unit keeping Rikers Island safe from drugs, contraband, FOX 5 NEW YORK,
https://www.fox5ny.com/news/rikers-island-k9-unit-queens.
44
• Escort Techniques: 49 During its routine review of incidents, the Monitoring Team has
not observed any improvement to staff escort techniques, and the pattern of unnecessarily
painful escort holds continues unabated. 50 During the first year of the Action Plan’s
implementation, the Department reported numerous times its intention to consult the
Monitoring Team on this issue, but it has never actually done so. In addition to the
needless infliction of pain upon people in custody, the use of painful escort holds
contributes to the Department’s larger use of force problem. During a two-week period in
June 2023, 89 uses of force occurred during escort, comprising about 37% of all uses of
force in that period. The fact that a routine escort so often escalates to an additional use of
physical force suggests that the application of this basic correctional skill requires
significant remediation. Further, despite the prevalence of painful escorts visible via
video of use of force incidents, the Department’s Rapid Reviews only rarely identify this
as an issue. This issue is included in the Monitoring Team’s priority recommendations for
the Court to direct the Department to address as detailed in the Conclusion of this report.
• Self-Harm Procedures: 51 Since the Court entered the Second Remedial Order in
September 2021, 52 which required the Department to ensure staff understand and follow
49
As required by the Action Plan, § D, ¶ 2(f).
50
See Monitor’s 2nd Report, pg. 110; Monitor’s 3rd Report, pg. 13 and pg. 149; Monitor’s 4th Report, pg.
8; Monitor’s 5th Report, pgs. 18-21; Monitor’s 7th Report, pg. 24; Monitor’s 8th Report, pg. 3-4; Monitor’s
9th Report, pgs. 30-31, pg. 39 and pg. 79; Monitor’s 10th Report, pg. 3, 13, 17, 29 and 31; Monitor’s 11th
Report, pgs. 24-25 and pgs. 46-47; and Monitor’s June 8, 2023 Special Report, pg. 6.
51
As required by the Action Plan, § D, ¶ 2(g).
52
The Monitoring Team has long raised concerns regarding self-harm and suicide. See Monitor’s 1st
Report (dkt. 269) at pgs. 52-53; Monitor’s 9th Report (dkt. 341) at pgs. 22-23; Monitor’s 10th Report (dkt.
36) at pg. 23; Monitor’s 11th Monitor’s Report (dkt. 368) at pgs. 33-35; Monitor’s August 24, 2021 Status
Report Letter to the Court (dkt. 378) at pgs. 3, 7; Monitor’s September 2, 2021 Status Report (dkt. 380) at
pgs. 1-2; Monitor’s September 23, 2021 Status Report (dkt. 387) at pgs. 1-3, 6, Appx. A, pgs. i-ii, vi;
Monitor’s October 14, 2021 Status Report (dkt. 403) at pgs. 5-6; Monitor’s November 17, 2021 Status
45
the Suicide Prevention and Intervention Policy, seven people have died by suicide or
suspected suicide (six of whom died since the Action Plan was entered in June 2022).
Further, the Department’s response to staffs’ failures to address self-harm incidents is
also of concern as discussed in the Staff Accountability – Identifying and Addressing
Misconduct section of this report. The Monitor’s October 28, 2022 Status Report outlined
a number of concerns about the Department’s policies, procedures and practices for
preventing and responding to self-harming behavior and the risk of suicide and made a
number of recommendations (see pgs. 17 to 31).
The Monitor’s April 3, 2023 Report (at pgs. 69 to 72) reported that the
Department took a number of positive steps. The Department retained a consultant to
support its work in this area, appointed a new Deputy Commissioner of Health Affairs,
convened a Mortality Review Committee that includes the Department and CHS, and
convened a Suicide Prevention Task Force comprised of a variety of agency leaders,
uniformed staff and representatives from H+H. The City also reported that the
Department and H+H have agreed that the Department receives sufficient information
from H+H to carry out its responsibilities with respect to reporting and addressing
injuries, suicides, and other types of self-harming behaviors. These are all encouraging
steps forward to prevent additional tragic outcomes.
The Department’s actions taken to date, while important first steps to create a
functional infrastructure for change, do not directly identify, assess or remediate staff
Report (dkt. 420) at pgs. 3, 9; Monitor’s 12th Report (dkt. 431) at pgs. 18-19, 31-32; Monitor’s March 16,
2022 Special Report (dkt. 438) at pgs. 46, 71; Monitor’s October 28, 2022 Report (dkt. 472) at pgs. 27-
31; Monitor’s April 3, 2023 Report (dkt. 517) on pgs. 64-72, 164; Monitor’s May 26, 2023 Special
Report (dkt. 533) on pgs. 4-6; Monitor’s June 8, 2023 Special Report (dkt. 541) on pgs. 9, 42, 44.
46
practice which is the crux of the Monitoring Team’s concerns. The Monitoring Team’s
October 28, 2022 recommendations 53 found that an external assessment by a qualified
expert of a number of different areas was necessary because the City and the Department
had not conducted this analysis on their own and do not appear to have the requisite
expertise or skills to conduct such an assessment, which remains true. Accordingly, the
Monitoring Team recommended the following assessment be conducted by an external
consultant with the requisite skill set:
o Assessing DOC and H+H policies related to Suicide Prevention to ascertain
whether they reflect generally accepted practice. The Department reports this task
has been referred to the Law Department to take the lead, but no date has been
provided as to when this policy development will be completed. The Department
further reports its consultant will review the policy after a draft has been
developed.
o Assessing the adequacy of H+H protocols for screening, assessing, and treating
the risk of suicide and Department protocols for responding to suicidal ideation,
making referrals and monitoring those who are on suicide precautions.
o Assessing Department staff’s practices and responses to self-harm incidents to
identify problem areas.
o Assessing current H+H and Department practices to identify where performance
is subpar.
The Monitoring Team originally intended to contract with a qualified individual
to conduct the above-referenced assessment, but the City and Department reported that
53
See the Monitor’s October 28, 2022 Report at pg. 31.
47
they had engaged their own expert to conduct this work. The individual contracted by the
Department is well-qualified to do the work and so the Monitoring Team acquiesced to
the City’s and Department’s arrangement, particularly because the City and Department
committed to the same scope of work proposed by the Monitoring Team.
Initially, in late 2022/early 2023, the Department actively engaged with its
consultant who provided suggestions and guided the development of a Mortality and
Morbidity Review process and worked with the Department and H+H to facilitate
coordination on these issues. However, the Monitoring Team’s recent discussions with
the Department’s contracted expert confirmed that the Department has essentially not
utilized the individual since February 2023, except for a few brief phone calls. It appears
that the Department now intends to utilize the consultant only to review any updated
policies it may develop, although a timeline for this task is unknown (and already
incredibly protracted). Furthermore, although the consultant gave the Department
guidance as to the structure/content for the Morbidity and Mortality Review, the
Monitoring Team understands that the consultant has not been invited to actually observe
any of the reviews that have been convened or taken any other steps to directly assess
staff practice. After more than nine months since the Monitoring Team’s
recommendation that the City and Department assess a variety of practices related to self-
harm and make changes as necessary to ensure their adequacy, the Department is no
closer to improving practice and reducing the risk of self-harm. Accordingly, the
Monitoring Team’s strongly reiterates its recommendation for an objective,
comprehensive external assessment and so this issue is included in the Monitoring
48
Team’s priority recommendations for the Court to direct the Department to address as
detailed in the Conclusion of this report.
Finally, the Suicide Prevention Task Force previously reported its plans to
address several additional concerns, 54 but to date, has not taken tangible action on these
initiatives. These include: (1) reviewing policy and procedures; (2) evaluating and
reviewing training; (3) improving follow-up on mental health referrals; (4) improving
information sharing during the new admissions process; (5) increasing video surveillance
coverage; (6) improving tracking of 15-minute tours; (7) rotating individuals assigned to
Suicide Watch Officer duty.
The fact that these initiatives continue to languish is particularly concerning given
the implications for direct harm to individuals in custody. Seven people have died by
suicide or suspected suicide (six of whom died since the Action Plan was entered in June
2022) since the Court required the Department to improve its practices regarding self-
harm.
• Post-Incident Management: 55 The Department developed a post-incident management
protocol for RNDC to better isolate the perpetrators of acts of violence, limit the potential
to exchange/abandon contraband, efficiently search the individuals involved, and transfer
those involved to more secure locations as appropriate. While the facility has begun to
54
See Monitor’s April 3, 2023 Report, pg. 71.
55
As required by the Action Plan, § D, ¶ 2(h).
49
better structure its response, NCU’s audits suggest these improvements are often offset
by the failure to follow the basic steps of the policy. 56
• Impact of Poor Security Practices: The Monitoring Team’s findings made throughout
the life of the Consent Judgment affirm the lack of progress in elevating staff practice and
controlling violence. The Monitoring Team’s contemporaneous review of initial reports
and Rapid Reviews of all use of force incidents from May 2023 revealed the following
trends and patterns:
o A large proportion of uses of force were related to fights among people in
custody, in response to attempts to search people in custody, and during escort. As
noted above, many of these events may have been successfully avoided if staff
had the requisite skill set in basic correctional practice, interpersonal
communication and conflict resolution, if lock-in time was enforced by staff, and
if out-of-cell time was more structured and/or enriched with programming.
o Multiple security failures contributed to and/or exacerbated use of force events
such as unsecured A stations, staff being off-post, staff failing to wear/activate
body-worn cameras, failure to lock doors, failure to enforce mandatory lock-in
and poor escort technique.
o Poor staff practice was revealed in numerous events that involved staff failing to
render aid and failing to intervene timely; deploying chemical agents in excessive
amounts and at an unsafe distance; unnecessarily deploying probe teams; staff’s
unprofessional conduct, use of profanity and other actions that escalated the
56
See Monitor’s March 16, 2022 Report (dkt. 438) at pg. 53; Monitor’s June 30, 2022 Report (dkt. 467) at
pg.20; Monitor’s April 3, 2023 Report (dkt. 517) at pg. 54.
50
situation; and situations in which the use of force could have been avoided if staff
practiced good de-escalation, communication or security measures.
• Illustrative Examples Reflecting the Harm from Poor Security Practices: Three
recent incidents, one at RNDC and two at GRVC are shared as illustrative examples of
the harm that flows from poor security practices. These are not isolated cases, as
demonstrated in NCU’s practice audits in May 2023 and based on reviews by the
Monitoring Team, and are shared in the interest of providing context for the impact these
poor practices have on operations and the harm that flows from them. These incidents are
outlined below.
o Illustrative Example 6: On May 12, 2023, in a General Population unit at

GRVC, many PICs were out in the dayroom area. Cell doors were visibly
open, unsecured, manipulated, and obstructed. A PIC was seen openly
smoking contraband. There was no officer on the floor post, so the individuals
were unsupervised. Two PICs engaged in a fistfight. After briefly fighting,
51
other incarcerated individuals separated the two. An officer entered the area
approximately 45 seconds after the fight started. One of the PICs involved in
the fight moved to the stairwell, where he was then punched in the face. The
PIC then ran up the stairs as other PICs pursued him. The Officer on the floor
tried to go up the stairs, but other PICs pushed him back and blocked his
path. The Officer did not advance. At the top of the tier, as the PIC was
running, he was elbowed in the face by another incarcerated individual,
knocking him to the floor. While on the floor, several incarcerated individuals
kicked him in the head and body as depicted above. The Officer on the floor
watched the assault from the stairwell. When the assault concluded, the
incarcerated individuals blocking him moved and allowed him up the stairs.
The Officer got to the victim of the assault, and the victim began convulsing.
Other incarcerated individuals carried the victim to the vestibule, where the
victim tried to get up and stumbled around until medical staff arrived. The
victim of this incident sustained a laceration on his right eyebrow, right
eyelid, and post-concussive syndrome, which required hospitalization at
Bellevue Hospital.
52
o Illustrative Example 7: On May 31, 2023, in a General Population housing

area at GRVC, shortly after midnight, several incarcerated individuals were
seen freely entering and exiting cells during institutional lock-in (a mandatory
time when individuals are to be locked in their cell). Cell doors were visibly
open, unsecured, manipulated, and obstructed. The housing area walls and
floors were covered in dirt, soot, and graffiti. Approximately a dozen people
in custody can be seen entering and exiting numerous cells during this time. In
one instance, nine people in custody were observed entering a single cell. As
depicted above, video captured a group of individuals pushing a PIC into a
cell as the PIC resisted by holding on to another PIC, but the group forced
him into the cell. They all entered and closed the door. As this occurred, the
Officer was seated at the housing area desk facing the general direction of the
cell. Approximately two and a half minutes after the PICs entered the cell, the
Officer exited the area, leaving the area unsupervised. The group of PICs
exited the cell approximately sixteen minutes after they forced their way in.
Later that morning, a DOC supervisor and Officer toured the housing area
and interacted with the victim of the assault in the cell through the cell’s food
slot. The DOC supervisor appeared to take no action. Finally, during the
evening a team of DOC Officers entered the housing area and escorted the
53
victim of the assault out of the area. The video depicts serious injuries on the
victim’s face as he is escorted out of the area. The victim was evaluated in
the clinic 18 hours after the incident occurred. The victim alleged sexual
assault with penetration and medical staff found orbital swelling, tenderness,
ecchymosis, bilateral subconjunctival hemorrhage, nasal bridge swelling, and
tenderness. The victim was referred to Bellevue Hospital.
o Illustrative Example 8: On June 8, 2023, at RNDC, several young adults

congregated in the tier and unauthorized areas like the staff desk. The Officer
assigned to the area exited the floor and entered the A-station, leaving the area
unsupervised. Video appears to capture the young adults directing the A station
Officer to unlock cell doors. A cell door near where the young adults congregated
opened, which allowed six PICs to enter and engage in an assault on the induvial
housed in the cell as depicted above. Shortly thereafter, the Officer re-entered the
area and all six PICs exited the cell and closed the cell door, leaving the victim
inside. The Officer appeared to interact with the PIC that was assaulted inside the
cell but does not take him out. Over the next several hours, multiple Officers and
DOC supervisors toured the area and interacted with the PIC that was assaulted, but
none took action. Over seven hours after the incident, the PIC was taken out of his
cell and evaluated in the clinic. He was transferred to the Urgicare with bilateral
lacerations.
Violence Indicators
54
Turning to quantitative metrics regarding violence, the average monthly rate of every
safety and violence indicator is substantially higher than when the Consent Judgment went into
effect in November 2015, and higher than the rates during each of the subsequent five years (i.e.,
2016-2020). While the rates of nearly every indicator reached a highpoint in 2021 and some of
the rates subsequently decreased, they have yet to return to levels near those observed when the
Consent Judgment was entered. Further, the Monitoring Team agrees with the City’s position
that “the sheer numbers don’t really tell you the whole story.” 57 The data, in combination with
the Monitoring Team’s qualitative assessment of staff practice, demonstrates that the Department
continues to fall far short of the requirement to materially improve the level of safety. Not only
are acts of violence alarmingly frequent, but they also contribute to the Department’s problems
with the use of force. The Monitoring Team’s assessment of current data on facility violence is
discussed below, and relevant data is attached to this report as Appendix A.
• Stabbing and Slashing: The Department’s average monthly rate of stabbings/slashings
during the most recent five-month period (January-May 2023; 0.48) is 24% lower than
the average monthly rate at the height of the crisis (2021; 0.63) but is 243% higher than
the average monthly rate of stabbings/slashings at the inception of the Consent Judgment
(2016; 0.14).
o A total of 420 and 468 stabbings/slashings occurred in the jails in 2021 and 2022,
respectively. Given that 144 stabbings/slashings have already occurred during the
first five months of 2023 (January-May), the Department is on track for 346
stabbings/slashings this year.
57
See April 27, 2023 Status Conference Transcript at pg. 57, lines 7 to 9.
55
o Although the number of stabbings/slashings appears to be decreasing, the fact that
hundreds of stabbings and slashings are expected to occur this year is troubling,
particularly when viewed in the context of the number of incidents at a time when
the jails’ poor conditions were found to be serious enough to warrant federal court
intervention (i.e., 159 stabbings and slashings occurred in 2016, just as the
Consent Judgment went into effect). The escalating rate of this serious form of
violence that began in 2021 and continues to the present is emblematic of the
imminent risk of harm present every day in the jails. Further, concerning as noted
above is that the Monitoring Team is aware of at least some stabbing/slashing
incidents that occurred that are not part of this data.
• Assaults on Staff: The Department’s average monthly rate of assaults on staff during the
most recent five-month period (January-May 2023; 0.99) is 38% lower than the average
monthly rate at the height of the crisis (2021; 1.6) but is 39% higher than the average
monthly rate of assault on staff at the inception of the Consent Judgment (2016; 0.71). 58
• Fights: The Department’s average monthly rate of fights during the most recent five-
month period (January-May 2023; 8.05) is 15% lower than the average monthly rate at
the apex of the crisis (2021; 9.28) but is 58% higher than the average monthly rate of
fights at the inception of the Consent Judgment (2016; 5.11).
• Serious Injuries: The Department currently has a reporting mechanism for tracking
incidents in which an incarcerated individual sustains a serious injury, wherein the
incident is coded as a “serious injury to inmate” in the Department’s records. The
58
These comparisons only include assaults on staff that involved a use of force, because relevant
comparison data for assaults on staff without a use of force are not available.
56
Monitoring Team has started to scrutinize these reports more closely given that they
represent direct harm to people in custody and because many of them relate to a variety
of Nunez issues. At this time, neither the full scope and contours of the reporting category
nor the aggregate data that may be available are fully known. The Monitoring Team is
now exploring these questions. However, it is clear that many of the incidents identified
as “serious injuries to inmate” reflect ongoing harm to incarcerated individuals and the
Monitoring Team’s review of a select group of cases revealed that these incidents are a
result of significant security and operational failures. These incidents must be considered
as part of the overall assessment of facility safety because many relate to harm sustained
during violent incidents. The Monitoring Team is not aware whether the Department
evaluates, analyzes or otherwise utilizes “serious injury” data as part of its overall
assessment of the state of affairs, but it is clearly relevant and an important indicator of
violence in the jails. Further, the referral criteria, scope and quality of any investigation
or potential follow-up for these incidents is unknown. As a result, the Monitoring Team
will be conducting a more fulsome assessment of this information for future reporting.
The Monitoring Team’s initial review of incidents categorized as “serious injury to
inmate” that occurred during a one week period, June 13 to 20, 2023, included 15
incidents involving 14 incarcerated individuals who sustained the following injuries: 3
individuals with a concussion; 3 individuals with a laceration to the eye; 1 individual with
a fractured hand; 1 individual with a nose fracture; 1 individual with a laceration to the
arm; 1 individual with a possible head injury; 1 individual with a possible hand injury; 1
individual with a laceration to the scalp, a fracture to the scalp and a concussion; 1
individual with a fracture to the head and a concussion; and 1 individual with a laceration
57
to the head. Further, the Monitoring Team’s review of videos of “serious injury to
inmate” incidents reveal similar concerns (e.g., illustrative examples 6, 7, and 8 discussed
above) as well as the illustrative example that occurred at GRVC recently:
o Illustrative Example 9: On May 14, 2023, in a General Population Housing

area at GRVC, incarcerated individuals were eating lunch in the day room.
Cell doors were visibly open, unsecured, manipulated, and obstructed. There
was no Officer on the floor post, so PICs were unsupervised. PICs
congregated in various areas, including unauthorized areas like the staff desk.
Video captured three PICs entering a cell and closing the door. Another
individual stood in front of the door and apparently guarding it.
Approximately thirty seconds later, the cell door opened, and several
incarcerated individuals dragged another incarcerated individual out as
depicted above. The individual was dragged to the front of the housing area,
where he was punched several times. A few seconds later, two Officers
entered the housing area, and the assaulted PIC tried to stand up but
stumbled around, clearly disoriented. Officers took the PIC to the clinic,
where medical staff noted the individual had a right orbital hematoma, right
lower eyelid laceration, left upper eyelid laceration, and a swollen nasal
bridge.
58
• Violence Reduction Plans: 59 The Action Plan requires the Department to develop
violence reduction plans for three facilities (RNDC, GRVC and AMKC) and requires
new cell doors to be installed at RNDC and AMKC (an update on the installation of Cell
Doors is included in Appendix A). The Monitoring Team has reported extensively on
current conditions at RNDC and GRVC. 60 All three facilities continue to rank among the
highest in the Department on most indicators of safety. Certain RNDC indicators reflect
significant improvement over historical high points. Certain GRVC indicators have
improved compared to recent highs but remain significantly higher than the average
monthly rates in 2016. AMKC’s indicators continue to trend in the wrong direction.
o At RNDC, a steady reduction in the average monthly use of force rate has occurred
since July-December 2018 61 (28.1) through the first five months of 2023 (8.2). The
average monthly rates of stabbings/slashings and fights also substantially decreased
during that time (stabbings/slashings decreased from 1.41 in 2021 to 0.50 in 2023;
fights decreased from 11.8 in 2021 to 7.0 in 2023). The decrease in fights is
particularly encouraging given that in July-December 2018, the average monthly rate
was 21.77. The current rate of stabbings/slashings is about 27% higher than it was in
July-December 2018 (0.55 versus 0.43). However, the Monitoring Team’s assessment
of recent incidents at RNDC continues to reveal poor security practices and that staff
and persons in custody are exposed to harm daily.
59
As required by the Action Plan, § A, ¶¶ 1(a) to (b).
60
See Monitor’s March 16, 2022, Report pgs. 17 to 30, Monitor’s Report June 3, 2022, Report pgs. 17 to
27, Monitor’s October 28, 2022, Report pgs. 65 to 71, Monitor’s April 3, 2023 Report pgs. 52 to 62.
61
With GMDC’s closure in July 2018, most of the young adults (age 18-21) were transferred to RNDC.
Given this significant change in RNDC’s composition, 2018 is used as the most relevant reference point.
59
o At GRVC, the improvements in the data have been more modest but are still trending
in the right direction. Thus far in 2023, the monthly average use of force rate is 10.7,
the monthly average rate of stabbings/slashings is 1.01, and the monthly average rate
of fights is 5.5, all of which remain at concerning levels, particularly compared to the
rates of these indicators in 2016 (UOF = 6.91; Stabbings/Slashings = 0.15; Fights =
3:32). However, the Monitoring Team’s assessment of recent incidents at GRVC
continues to reveal poor security practices and that staff and persons in custody are
exposed to harm daily.
o Unfortunately, the rates of use of force and violence at AMKC are trending in the
wrong direction (i.e., they ticked upward in 2023) and so additional efforts are needed
to improve safety. Thus far in 2023, the average monthly use of force rate is 9.13
(compared to 2.42 in 2016 and 7.27 in 2022), the average monthly rate of
stabbings/slashings is 0.53 (compared to 0.10 in 2016 and 0.4 in 2022), and the
average rate of fights is 9.01 (compared to 4.91 in 2016 and 6.59 in 2022). The
Department is now planning to close AMKC and to re-open OBCC, as discussed in
other sections of this report.
o In summary, while certain data points viewed in isolation suggest that some progress
has been made at RNDC and GRVC, particularly in the downward trends noted since
2021, the fact remains that none of these decreases are of the magnitude needed to
achieve the reform required by the Consent Judgment. In every case, quantitative
metrics show that violence and the use of force are exponentially higher than they
were in 2016. Further, security breaches and operational failures continue to be
prevalent. Several NCU audits of practice during a few randomly selected days in
60
May 2023 at RNDC and GRVC found operations to be in disarray, including
unsecured cell doors and incarcerated individuals freely entering and exiting their
cells, no staff on post throughout various tours, inadequate supervisor tours, and
incarcerated individuals smoking contraband. Many of these problems were present
in the three recent incidents that occurred at RNDC and GRVC, which are
summarized above.
• In-Custody Deaths: In 2022, more people died in custody or were released just prior to
their death (n=19) than in any other year since the Consent Judgment was entered in
November 2015. No matter the time period used for comparison, the number of people
who have died in custody has been tragic and is related, at least in part, to the poor
conditions and security practices in the jails as set forth herein. In fact, video review of
one of the most recent in-custody deaths which occurred on July 4, 2023 reveals a
number of security and operational failures including, but not limited to, failure to
enforce lock-in, individuals use of contraband (smoking) on the housing unit, failure to
provide timely medical treatment, and failure by the Captain to tour. The Department has
enacted four suspensions related to this death including for the two officers on the A and
B Post of the housing unit, the Captains and the Deputy Warden of the Facility. 62
The Monitoring Team has been working with the Department since the Court’s
June 13, 2023 Order (dkt. 550) was issued to ensure that it is promptly notified of all in-
custody deaths and of those individuals who have been compassionately released. In so
62
The Commanding Officer of this Facility is a Deputy Warden. The Deputy Warden was suspended for
failure to adequately recommend appropriate discipline for the individuals involved in this incident. It
must be noted that had previously been decided, prior to this incident, that the this individual was no
longer going to serve as a Command Officer of a Facility upon closure of the Facility in a few weeks.
61
doing, the Department advised the Monitoring Team that the term “compassionate
release,” does not adequately capture the intended group of individuals because the use of
the term is limited to sentenced individuals and does not apply to pre-trial detainees.
More specifically, the Department reports that “compassionate release” is defined by the
NY State Department of Corrections and Community Supervision (NY DOCCS) and
used by sentenced individuals who make a request to the Board for Compassionate
Release consideration. 63 This particular procedure is not applicable to the Department.
However, other mechanisms serve a similar function for the New York City jails.
If an incarcerated individual has a health condition that may merit release, the
process has a few steps and must be ordered by the Court. The Department does not have
any authority to release an individual because of a health condition although it may
certainly identify and recommend individuals that should be considered for potential
release. 64 To the extent an individual has a health condition that may merit release, CHS
may issue a clinical condition letter, with the patient’s consent, which is then provided to
the individual’s defense counsel. Counsel then may petition the Court to release the
individual. Release is not automatic, and an individual determination must be made by
the Court. If the court determines release is appropriate, the Department is notified via a
court order that the individual is being released on their own recognizance (“ROR”).
However, the order does not specify a medical reason for the release.
63
New York State Department of Corrections and Community Supervision. Directive #4304 Medical
Parole and Compassionate Release. Dated 01/23/2023. Accessed at:
https://doccs.ny.gov/system/files/documents/2023/02/4304-public_1.pdf
64
See, for example, Jan Ransom, Jails Boss Urged Man’s Release in Apparent Bid to Limit Rikers Death
Toll, NEW YORK TIMES, https://www.nytimes.com/2022/09/27/nyregion/riker-death-count.html in which
the Commissioner recommended an individual may be suitable for release due to their health condition.
62
The City only has authority to release an incarcerated individual in its custody is
pursuant to New York State Correction Law 6-a which affords the City the power to
release incarcerated individuals, who have been sentenced to under one year behind bars,
into a work release program. With this background, the Department reported the
following:
o Four individuals have died in custody between January 1 and July 10, 2023.
o One individual was released from custody by the Court following the issuance of
a clinical condition letter and subsequently passed away a few days later (this is
Incident # 4 from the Monitor’s May 26, 2023 Report).
o One individual was released from custody by the Court following the issuance of
a clinical condition letter, but their current health condition is unknown.
o No one has been released via New York State Correction Law 6-a between
January 1 and June 13, 2023. 65
o CHS issued 41 clinical condition letters between January 1 and June 28, 2023.
The Monitoring Team is working with the Department to determine the number of
individuals subsequently released by the Court.
Given this information, the Monitoring Team reports that thus far in 2023, five
individuals have died in custody or shortly following their release due to a health
condition that occurred while in custody. A chart of the causes of death from January 1,
2015 to July 10, 2023 is below.
65
Since 2020, the City has released 327 incarcerated individuals to work release programs (297 in 2020,
13 in 2021, 62 in 2022, and 0 in between January 1, 2023 and June 13, 2023).
63
NYC DOC Causes of Death,

2015 to July 10, 2023
2015 2016 2017 2018 2019 2020 2021 2022 2023 66 Total
Accidental 1 1
COVID-19 3 2 5
Medical Condition 9 11 4 7 3 2 4 4 1 45
Overdose 2 1 4 6 13
Suicide 2 2 1 1 4 5 15
Drowned 1 1
Pending OCME
4 3
Confirmation
Undetermined Due to
Death Outside DOC 4 67 2 2 8
Custody
Undetermined by OCME 1 1 2
Total 11 15 6 8 3 11 16 19 5 94
Department’s Use of Data to Improve and Reduce the Use of Force and Increase Facility Safety
Using data to understand and improve practice is commonplace in correctional systems
and is an essential strategy for properly targeting solutions and assessing whether those solutions
are having the desired impact. The Monitoring Team has consistently reported that significant
data and information is available to Department and facility leaders, but they have not effectively
utilized that information to identify and address the underlying causes of the unnecessary and
excessive force and violence occurring in the agency. The Monitoring Team has persistently
encouraged the Department to develop strategies to leverage the available information and data,
66
This data is based on information provided by the Department. The Monitoring Team has not yet had a
chance to evaluate the release of individuals based on a clinical condition letter as noted above.
67
4 of the 11 individuals who passed away in 2020 were not technically in DOC custody at the time they
passed away as they were participating in programs in the community and were not under the supervision
of DOC staff at the time of their death and were not physically in the Department’s custody (i.e., they
were participating in Brooklyn Justice Initiatives, Specialized Model for Adult Reentry and Training
(SMART), and Work release programs). The cause of death for each of these individuals is not known
and categorized as “Undetermined.”
64
but the Department has demonstrated that it does not have this capacity, ability and/or desire. As
a result of the Department’s failure to adequately evaluate and consider this data, the First
Remedial Order, §A, ¶ 2 requires the Department leadership to conduct such assessments and
analysis. However, the Department has remained in non-compliance with this requirement since
the 11th Monitoring Period (July to December 2020), when it was entered by the Court.
Most recently, especially in the past year, the Department’s approach to using data
devolved into one that appears to prioritize simply identifying discrete metrics and numbers to
pinpoint areas of “progress.” With limited exceptions, Department leadership and staff simply
state that numbers are “trending down.” Such a conclusion, while perhaps serving a useful public
relations function, is factually questionable. An assessment of the data cannot be limited to just a
few data points and the totality of the circumstances must be considered. Further, as discussed
elsewhere in this report, there are serious questions about whether the data accurately represents
all incidents that have occurred. Basic probes by the Monitoring Team to understand the
Department’s perspective on its limited review of data reveal that Department leadership and
staff do not further analyze or understand the implications of the Department’s own data. For
example, the Department’s narrow focus on outcomes from the past 18 months and the purported
downward trends are short-sighted and simplistic. By not using available data to understand what
operational changes have occurred and whether such changes can be leveraged so that further
gains can be achieved or whether additional changes in practices may be necessary to continue
the apparent trend, the Department is failing to utilize a valuable tool to identify and implement
good practices. Similarly, the Department does not appear to engage in basic analysis of the
factors driving the high rates of use of force and what steps could be taken to reduce those rates.
If such analyses were occurring, targeted solutions to address the specific issues highlighted in
65
this section could have been identified and initiated. For instance, even a cursory review of use
of force data reveals that an unnecessarily high number of uses of force occur during searches
and escorts. Correctional practice is replete with a variety of strategies that could be used to
better understand and then address the typical dynamics that characterize each of these factors.
However, as noted above, the Department has not taken any steps to address either issue.
In their discussions with the Monitoring Team, Department and facility leaders rarely
appear to have knowledge of this information and when asked about elements of the operation
that are not going well, offer only superficial observations or platitudinous statements. Only
rarely is a problem-solving approach discussed with a level of detail that makes clear how and
why a certain initiative to improve practice should be developed and implemented. For example,
in addition to tracking macro-statistics like the overall use of force rate or the number of fights,
an effective problem-solving effort should also include a basic “hot-spot analysis” (i.e., where do
most fights occur (location/housing unit), during what situation, at what time of day, among
which people in custody, which staff are present) and then generate a root-cause analysis to
understand why each of those trends is present. For instance, why are fights prevalent on the
Mental Observation units? Why do those fights tend to occur on the night shift (11 pm to 7 am)?
What procedures are not being followed by staff creating an opportunity for violence to occur?
What prevents or diminishes staffs’ ability to follow procedures? How do the people in custody
explain their involvement in fights? And ultimately, how can each of those dynamics be
addressed? This type of analysis should be on-going for any and all of the intractable problems
the Department is facing: use of force, fights, stabbings and slashings, problems during lock-in
hours, failure to utilize tour wands, failure to provide daily recreation, head strikes, failures to
secure doors, presence of illicit drugs, etc. The Department reportedly focuses on changes to key
66
metrics during the recently reinstated TEAMS meetings, but any such problem-solving analysis,
if it is occurring, has not been shared with the Monitoring Team, and based on the Monitoring
Team’s observations and analyses, are not having the desired impact of making the Department
more safe and secure for both staff and persons in custody.
As stated above, the Department has a broad array of data that could be useful to the task
if it were properly deployed, and also has a number of structures and forums that could
effectively house such a problem-solving approach (e.g., TEAMS, Nunez meetings, the OMAP,
the NCU). Under the current rubric, the perpetual state of dysfunction will simply continue
unless and until the Department identifies the salient data necessary to conduct an objective
assessment of the current state of affairs and then correctly analyzes and interprets the data so
that it can be used to inform solutions to its entrenched problems. Given this long-standing
problem, this issue is included in the Monitoring Team’s priority recommendations for the Court
to direct the Department to address as detailed in the Conclusion of this report.
Conclusion
The quantitative data and qualitative findings discussed above demonstrate that the risk
of harm in the jails remains grave and that the jails remain patently unsafe. The use of force rate
is exponentially higher than when the Consent Judgment went into effect, and the proportion of
incidents involving unnecessary and/or excessive uses of force and serious injuries remains
unchanged. Further, the significantly larger number of use of force incidents over time means
that more people in custody are subjected to the excessive and unnecessary use of force and more
people are suffering serious injuries. Further, the number and rate of stabbings and slashings
have skyrocketed since 2021, so much so that the reduction achieved in 2023 is being touted by
the Department as a “success” at a time when the Department is projected to have at least 346
67
stabbings and slashings this year. This is more than the number of stabbings and slashings that
occurred in the combined three-year period, 2017-2019 when the Department’s population was
significantly higher. And tragically, a record number of people died in 2022 while they were in
custody. In addition to the concerning trends in key safety-related outcomes, the Department’s
continued problems related to ESU, failures in basic security practices, lack of objective
expertise to assess its procedures for preventing self-harm, and problems with staff reporting
mean that without effective remediation, the imminent risk of harm in the jails will continue
unabated.
As outlined in the Conclusion of this report, the Monitoring Team has recommended that
the Court enter an order to impose specific deadlines and increased oversight by the Monitoring
Team to address certain priority items that have continued to languish but that can and should be
implemented in the near term. This includes: (1) improving the Department’s use of data, (2)
improving search and escort procedures, (3) improving lock-in procedures, (4) ensuring staff
remain on post, (5) multiple initiatives to address the problematic assignment, deficient training
and dangerous practices of ESU staff, and (6) undertaking an objective assessment of and
making necessary improvements to the City’s and Department’s procedures for preventing self-
harm and suicide.
68
LEADERSHIP, SUPERVISION, AND TRAINING

The success of a reform initiative of this magnitude depends to a large extent on the
leadership delivered by agency executive staff, facility leadership, and those who supervise
officers’ work with people in custody. The leaders are the messengers of change and set the tone
for whether the change will move beyond the superficial and become the new cultural norms and
entrenched practices required by the Nunez Court Orders. Not only must these leaders have a
nuanced understanding of what the Nunez Court Orders require, but they must also understand
the obstacles and barriers that managers and staff will face as they endeavor to implement new
practices and they must have solutions for overcoming the many challenges that arise as that
process evolves. While new concepts are introduced to officers during training, it is the leaders
and supervisors who transfer that initial introduction into everyday practice through their
messaging, guidance, coaching and role modeling. These three elements—leadership,
supervision and training—are the assets that translate the words on the pages of the Nunez Court
Orders into improved day-to-day practice that will fundamentally alter staffs’ approach to people
in custody and to maintaining a safe environment.
Department Leadership
The Action Plan required an infusion of external expertise into the Department’s
leadership structure to address the widespread skill deficits in sound correctional practice. The
original leadership structure outlined in the Action Plan, § A ¶ 3(b) was altered by Court Order
on December 6, 2023 (dkt. 492), which “permit[ed] the Department to hire facility leadership at
the Warden level from outside the Department’s current uniformed ranks.” In addition, the
Action Plan’s original concept for the hierarchy of facility leadership (see Action Plan, § A ¶
3(b)(ii)(2)(b)) was also reformulated. Rather than having a civilian leader partnered with a
69
uniformed Warden as originally conceptualized, the top level of the facility leadership structure
is solely a civilian Assistant Commissioner of Operations who serves as the Commander of the
Facility, replacing the Warden. The overall goal of infusing expertise in sound correctional
practice into the facilities’ operation remains the same, but the new structure streamlines the
authority and reporting structure.
• Senior Deputy Commissioner: 68 The role of Senior Deputy Commissioner (“SDC”),
akin to a Chief of Department, has essentially remained vacant for one year (except for
three months when it was filled), so the Commissioner has been serving in this role.
Given the broad scope of the Commissioner’s existing duties, it is critical that this gap in
the management structure is filled as soon as possible, as the SDC is the chief operations
executive that guides the uniformed rank in its 24/7 operations.
• Deputy Commissioners: 69 Three well-qualified individuals serve as Deputy
Commissioner of Security (Security Manager), Deputy Commissioner of Administration
(Staffing Manager) and Deputy Commissioner of Classification, Custody Management
and Facility Operations (Classification Manager). Together, they are responsible for three
of the core areas of the Action Plan.
• Security Operations Leadership. An Assistant Commissioner of Security Operations
was appointed to report to the Security Manager. In addition, a uniform leader is serving
as an Acting Chief of Security Operations and also reports to the Security Manager.
68
As required by the Action Plan § A, ¶ 3(b)(ii).
69
As required by the Action Plan § A, ¶ 3(b)(ii)(1), (2), and (3); § C, ¶ 1; § D, ¶ 1; § E, ¶ 1.
70
• Associate Commissioners of Operations: 70 Two Associate Commissioners of
Operations report to the Classification Manager. The Associate Commissioners supervise
the Assistant Commissioners of Operation (discussed below).
• Assistant Commissioners of Operations: 71 Seven Assistant Commissioners of
Operations have been appointed, six of whom serve as the Commanding Officers (i.e.,
Warden) of individual facilities (EMTC, GRVC, RNDC, RMSC, OBCC, and VCBC).
Two of the newly appointed Assistant Commissioners formerly served as uniformed
Wardens in the facilities. Each Commanding Officer is responsible for their facility’s
operation and supervises the Deputy Wardens (“DW”), Assistant Deputy Wardens
(“ADW”), Captains and officers assigned to their command. The Assistant
Commissioners of Operations report to the Associate Commissioners of Operations noted
above. The seventh Assistant Commissioner of Operations works directly with the
Classification Manager and is currently assigned to Department-wide initiatives. 72
The goal and purpose of infusing external correctional expertise into the system was so
that the deficient and entrenched practices and staff behaviors that have long plagued the agency
could be identified and rectified. There is no question that the recently hired executive staff can
have a positive impact on staff practice and their work to date reaffirms the necessity of
installing individuals with demonstrated correctional expertise in order to begin to align the
Department’s functioning with generally accepted practice. Already, some of the new leaders
70
As required by the Action Plan § A, ¶ 3(b)(ii)(2)(a).
71
As required by the Action Plan § A, ¶ 3(b)(ii)(2)(b).
72
As of July 5, ,2023, this Assistant Commissioner has been appointed to manage AMKC on at least a
temporary basis. Given the imminent closure of this facility, this position is not likely to be a permanent
assignment.
71
have identified deficiencies and poor practice and have been working to address them. However,
the Monitoring Team has observed in discussions with some of the newly appointed leaders that
they do not appear to have sufficient insight into ongoing and/or recurring deficiencies and
problems, which is critical for the formulation of appropriate solutions. While progress must be
recognized, as discussed in the Department’s Management Structure and Management of the
Nunez Court Orders section of this report and elsewhere, the Monitoring Team has observed that
some leaders tend to focus only on the progress and fail to acknowledge or address concerning
lapses in security and operational failures. For example, during a recent discussion with the
Monitoring Team regarding the current status of GRVC, a senior Department executive failed to
acknowledge any of the security or operational failures discussed in the Security, Violence, and
Use of Force section of this report that had just recently occurred. It is unclear whether this
senior Department executive was unaware of the issues or whether the individual chose not to
acknowledge them to the Monitoring Team. Either way, such apparent lack of insight into the
facilities’ continuing practice failures is concerning and does not engender confidence in the
prospect that practices will materially change, especially given the magnitude of change that
must occur.
This integration of new leaders with experience in other correctional systems and/or
demonstrated mastery of sound correctional practice is essential, but on its own is not sufficient
to change the on-the-ground practice in the way the Nunez Court Orders require. As outlined in
the Department’s Management Structure and Management of the Nunez Court Orders section of
the report significant concerns remain about the agency leadership’s ability and approach to
managing the reform initiative and the extent to which they have fully embraced the
requirements of the Nunez Court Orders.
72
Supervision
Quality supervision is not about simply advising staff on what to do, but also requires
consistent expectations, frequent drill and practice, reinforcement and recognition of improved
practice, and accountability and discipline for those whose practice does not evolve as required.
It requires recognizing progress, but also keen insight into continued deficiencies and problems
so that appropriate solutions can be formulated.
In this Department, the goal of quality supervision has been particularly difficult to
achieve because the number of supervisors is limited and because the supervisors generally lack
the requisite perspective and experience to guide their subordinates toward better practice. 73 The
Monitoring Team’s observations over the past eight years indicate that supervisors at all levels
have a limited command of the restrictions and prohibitions of the Use of Force Directive, appear
to act precipitously, and many ultimately end up contributing to or catalyzing the poor outcomes
that are of concern. They also fail to detect and then fail to correct the lax security practices
among their subordinates that contribute to problems consistently observed and identified by the
Monitoring Team in many incidents. Their skill deficits are exacerbated by the fact that this
Department has fewer levels of supervisors in its chain of command than is seen in most
correctional systems. 74 Most areas in need of skill development are basic correctional practices
but infusing them to the point that they become reflexive practice among thousands of staff and
hundreds of supervisors is a monumental undertaking. Embedding external correctional expertise
73
See for example, Martin Declaration (dkt. 397), Exhibit D “Citations to Monitoring Team Findings re:
Supervisory Deficiencies.”
74
See for example, Monitor’s October 28, 2022 Report, at pgs. 78-80; March 16, 2022 Report at pgs. 4 to
6, 39 to 41; 11th Monitor’s Report at pgs. 8 to 11; 10th Monitor’s Report at pgs. 25 to 30; 9th Monitor’s
Report at pgs. 22 to 24.
73
into this agency was an essential first step, but the requisite expertise among the subordinates
will not magically appear without dedicated mentorship and leaders who consistently model
effective supervision strategies. While certain qualified people are being brought into the
organization, improvements to the quality of supervision at all levels of the chain of command
remain imperative. The Department has begun to recognize this core necessity, which is positive,
but the dearth of quality staff supervision remains a serious concern. Several steps—some of
which will take some time to complete—are needed to meet the requirements of the Nunez Court
Orders such that staff practices related to safety and security can be demonstrably improved and
sustained.
• Selection of Supervisors
The staff the Department chooses to promote to the positions of DW, ADW, and Captain
sends a message about agency leadership’s values, the culture it intends to cultivate and promote,
and the type of behavior that is set out as an example for others to emulate. 75 During the last
Monitoring Period (July to December 2022), the Monitoring Team outlined a number of
concerns regarding the Department’s promotional screening process, and the Department’s
Substantial Compliance rating with Consent Judgment § XII, ¶ 1 was downgraded to Partial
Compliance. 76
Since the Action Plan went into effect, a total of 26 staff were promoted to Captain and
an additional class of Captains will reportedly be promoted in July 2023. 77 Further, the
75
See for example the Monitor’s April 3, 2023 Report at pg. 210 and the Monitor’s Eighth Report (dkt.
332) at pg. 199.
76
The Department had achieved Substantial Compliance during the Fifth to Twelfth Monitoring Periods.
The provision was not rated in the Thirteenth or Fourteenth Monitoring Periods.
77
The Monitoring Team’s complete compliance assessment of new ADWs’ and Captains’ pre-
promotional screening will be provided in the Monitoring Team’s next report.
74
Department has appointed 32 individuals to the rank of ADWs– 26 were promoted in January
2023 and six candidates were selected in mid-June 2023. The Monitoring Team’s assessment in
January 2023 found that 12 of the 26 staff promoted to ADW in early 2023 lacked an objective
or sound basis for promotion based on the screening materials provided. 78 More specifically,
almost half of the individuals promoted had been identified via the Department’s own screening
process as unsuitable for promotion, but they were promoted anyway. Despite requests from the
Monitoring Team to understand the decision-making process used for each individual, the
Commissioner simply reported that he “carefully considered each of those assistant deputy
warden promotions and determined that it was appropriate to give each individual an opportunity
to succeed in their new leadership role.” 79
As for the six candidates identified for promotion to ADW in June 2023, several
concerning issues emerged. First, the Department did not follow its own policy for pre-
promotional screening in that only a truncated screening process was utilized rather than the full
assessment of the individuals’ background and qualifications required by policy. More
specifically, the Department only sought input from the Trials Division and Investigation
Division (before it was split into two units). Further, the Department’s screening practices did
not comport with the Monitoring Team’s April 2023 Recommendations regarding necessary
improvements to the screening process to include an assessment of an individual’s use of force
disciplinary history required by Consent Judgment, § XII, ¶2 (i.e., to review an individual’s
history of Command Discipline and PDRs), despite assurances from a senior Department
78
See the Monitor’s April 3, 2023 Report at pg. 212 to 216.
79
See April 27, 2023 Court Conference Transcript at pg. 20, 15:18.
75
executive that it would do so. 80 Finally, an initial review of the screening materials identified that
one candidate was initially not recommended due to discipline related to two violent incidents.
One of those two incidents also had corresponding criminal charges, which were subsequently
dropped. As a result, six weeks later the Trials Division recommended the individual for
promotion because the criminal charges were dropped, but continued to note the individual still
had formal disciplinary charges with the Trials Division for two violent incidents. It is
concerning that the Department’s pre-promotional screening practices have not addressed the
deficiencies identified by the Monitoring Team and has become even less rigorous as the
Department is failing to follow its own policy to screen staff for promotions. Finally, the
Department failed to timely provide the Monitoring Team with accurate information regarding
the promotion of these candidates. Conflicting information about those staff to be promoted was
initially provided as outlined in the Monitor’s June 8, 2023 Report at pgs. 24 to 25. The
Department subsequently committed to providing routine updates regarding promotions but did
not do so. The Monitoring Team ultimately learned that the candidates had indeed been
promoted when the Training Division advised the Monitoring Team that pre-promotional
training was scheduled to commence shortly. After the Monitoring Team made yet another
request for information, the Monitoring Team was finally advised about the promotions and
provided the requested documentation for these six individuals.
80
A senior Department executive reported to the Monitoring Team on May 17, 2023 that prior to
promoting this newest class of ADWs, the Department would address the Monitoring Team’s feedback
regarding the assessment of a candidate’s disciplinary record, pursuant to Consent Judgment § XII, ¶ 2.
This individual assured the Monitoring Team that the screening protocol would be revised to include an
assessment of relevant Command Discipline and PDRs. This did not occur, and the same deficient
process regarding the assessment of an individual’s use of force disciplinary history described in the
Monitor’s April 3, 2023 Report (see pgs. 214 to 215) was conducted.
76
On the afternoon of July 7, 2023, the Monitoring Team learned, through the
Department’s public social media page, that in fact 10, not 6 ADWs, have recently been
promoted. The Monitoring Team immediately requested confirmation about the number of
individuals promoted to ADW as it appeared this public report was inconsistent with the
Department’s report to the Monitoring Team that 6 ADWs were promoted. In response to this
request, the Department reported that four additional candidates were in fact promoted to ADW
“at the very last minute” so there could be a “bigger” promotional class. It is unclear why the
Department did not advise the Monitoring Team about the promotion of these individuals given
the repeated and long-standing request for this information. It is deeply disturbing that the
Monitoring Team continues to have to rely on public reports to verify information that the
Department should be providing to the Monitoring Team in response to its requests.
Given the findings regarding the Department’s faulty screening procedures, this issue is
included in the Monitoring Team’s priority recommendations for the Court to direct the
Department to address as detailed in the Conclusion of this report.
• Supervisor Deployment and Direct Supervision of Staff in the Facilities
A tangible step toward improved staff supervision is the effort by the Staffing Manager to
alter the schedules of the Deputy Wardens and ADWs to spread their deployment across shifts
and throughout the week (including weekends). Another initiative endeavors to ensure that
ADWs who are responsible for the on-the-ground supervision of each shift more directly
supervise their subordinates. Finally, the Department is seeking to reduce the span of control of
Captains (meaning, how many staff they supervise) so that they can more adequately supervise
the housing units. Below is a brief summary of the Department’s efforts to address the
supervisory requirements of the Action Plan.
77
o Deputy Warden Assignment & Schedules: At the beginning of 2023, the DWs’
schedules were reorganized using staggered start times to provide better coverage
throughout the day (previously, DWs all worked on the same tour). Each DW is
now also required to work one weekend day each week. This approach to
scheduling is consistent with sound correctional practice in which a DW is
available for a large portion of each day.
o Reassignment of ADWs: 81 The Staffing Manager has assessed ADW assignments
across facilities in order to broaden the presence of supervisors throughout
evenings and weekends. In particular, the Staffing Manager reports that ADWs
are now assigned to all three shifts every day of the week. Since the Action Plan
went into effect, the Department increased the number of ADWs by 34%, from 67
to 90. The proportion assigned to facility and court commands also increased
from 73% to 82% during this same time period. This translates to an additional 25
ADWs in the facility/court commands. A chart with the staffing numbers for
ADWs is provided in Appendix A. This is an important step, but the Department
reports it still does not have quite enough ADWs to ensure that each tour has both
a Tour Commander as well as ADWs to supervise Captains. With respect to the
Tour Commanders, they have traditionally been stationed in an office in the
administrative corridor of the jails. They were supported by at least one
uniformed assistant who was frequently tasked with touring the jail while the
Tour Commander remained in the office. In order to ensure that the Tour
Commander is physically located within and integrated into the operations of the
81
As required by Action Plan § C, ¶ 3(iii)
78
jails, Tour Commanders are now required to work from inside each facility’s
control center (the central hub of the jail) instead of from an administrative office.
Further, the assistants historically assigned to the Tour Commander have been
reassigned to posts working with incarcerated individuals and the Staffing
Manager reports the Roster Management unit vigilantly assesses assignments of
these staff to ensure they are assigned to posts that directly supervise the
incarcerated population.
o Assignment of Captains: 82 The Staffing Manager reports he has assessed
Captains’ assignments across facilities to improve the span of control for
Captains. However, this is challenging as since the Action Plan went into effect,
the number of Captains decreased 9% (from 607 to 553). A slightly larger
proportion is now assigned to facility or court commands compared to when the
Action Plan went into effect (74% versus 69%, respectively), but given the overall
decline in the number of Captains, this translates to a net loss of 5 Captains (411
versus 416, respectively) in the facility/court commands. The Department further
reports that the number of Captains is currently insufficient to ensure a reasonable
span of control. A chart with the staffing numbers for Captains is provided in
Appendix A.
 Re-assignment of Captains on Temporary Duty: 83 The Department has
reduced the number of Captains on non-facility-based assignments via
Temporary Duty status (“TDY”). At least 20 Captains previously on TDY
82
As required by Action Plan § C, ¶ 3(ii)
83
As required by Action Plan § A, ¶ 3(a)
79
status elsewhere in the agency have been returned to posts in the jails.
About 30 Captains (about 5% of all Captains) remain on long-term TDY
status. TDY status is used sparingly and the circumstances in which the
Department has reported using it appear appropriate given certain
budgetary factors and, in some cases, where specific expertise is needed
for a position. The Monitoring Team has evaluated the post assignments of
Captains who remain on long term TDY status, and the post assignments
appear reasonable.
o Routine Tours & Tour Wands: 84 Line staff’s routine tours of their assigned
housing units and assessment of each individual in a cell are essential for
verifying the welfare of people in custody and for addressing their concerns and
service needs. Similarly, Captains’ tours are important for detecting and
correcting poor staff practice, for providing support to line officers and for
resolving any remaining concerns among people in custody. Verifying the welfare
of people in custody at frequent intervals anytime they are confined to a cell is an
essential (and very basic) correctional practice. Internal audits and reports from
facility leaders indicate that routine tours of housing units are not occurring as
they should (as discussed in more detail in the Security, Violence, and Use of
Force section of this report). One tool for ensuring that staff conduct routine tours
of their assigned units are electronic tour wands, which, when tapped on a sensor
affixed to the wall in key locations in the housing units, provide a record of the
84
As required by Action Plan § A, ¶ 1(d).
80
frequency of tours. This tool was originally implemented in late 2022. 85 The
Department’s policy also requires Captains to utilize the tour wands to document
their supervisory tours of celled housing areas. The policy requires Tour
Commanders to review tour wand data each day. This data provides insight into
staffs’ touring practices (particularly when combined with the qualitative
assessments conducted by NCU, as discussed in the Security, Violence, and Use
of Force section of this report) and can be used as a basis for corrective action if
staff are not conducting tours at the required frequency. The Department has a
dashboard populated with tour wand data for both officers and Captains, however,
the Department is still devising a method to analyze trends or otherwise conduct
analyses to support a quality assurance strategy or ensure staff compliance with
these requirements. The Department reports this will occur in July 2023.
o Early Intervention, Support and Supervision (E.I.S.S.): 86 The Department’s
E.I.S.S. unit supports staff who demonstrate a need for more intensive supervision
than that available through their superiors in the facility chain of command. The
E.I.S.S. unit has expanded its monitoring program to include any staff on
disciplinary probation and all supervisors during their probationary period, as
required by the Action Plan. The Department reports that 35 staff on disciplinary
probation have been onboarded since June 1, 2022. Further, over 30 ADWs and
Captains that were recently promoted have been onboarded to E.I.S.S. With
85
A description of the efforts to implement the use of tour wands was provided in the Monitor’s October
28, 2022 Report on pgs. 72 to 74.
86
As required by Action Plan § A, ¶ 3(c).
81
respect to E.I.S.S. access to information, E.I.S.S. staff report that has improved.
See the Monitor’s April 3, 2023 Report at pgs. 172 to 175.
Training
Over the years, training has generally been a bright spot in the Department’s efforts to
fulfill its Nunez obligations. The Department has taken two important steps regarding training
since the entry of the Action Plan. First, the training for the new class of recruits took place in
the NYPD’s state-of-the-art training academy. Since the inception of the Consent Judgment, the
Monitoring Team has lamented the poor conditions of the Department’s training space and
strongly encouraged the Department to improve its training facilities. 87 The City previously
reported its intention to build a new training academy, but the status of that initiative is unknown.
As the Monitoring Team noted in its very first report on this matter, the NYPD training academy
is a state-of-the-art space that provides for both classroom and tactical instruction in a modern,
spacious facility with the newest technology to aid in educational practices, emphasizing the
importance and critical linkage of training and good law enforcement. 88 The Monitoring Team
applauds the Department’s use of this space for its training. However, the Department’s effort to
build a new training academy as announced in August 2021 is unknown. 89
In addition, the Department is making efforts to increase staff skill/experience via an
extended Field Training program. Rather than the traditional two-weeks of on-the-job training,
87
See, for example, Monitor’s 1st Report at pgs. 56 to 57 (dkt. 269), Monitor’s 6th Report at pgs. 5 to 6
(dkt. 317); Monitor’s 7th Report at pg. 74 (dkt. 332); Monitor’s 8th Report at pg. 94 (dkt. 327); Monitor’s
9th Report at pg. 110 (dkt. 341); Monitor’s 10th Report at pgs. 101 to 102 (dkt. 360); Monitor’s 11th Report
at pgs. 149 to 150 (dkt. 368).
88
See Monitor’s 1st Report at pgs. 56 to 57 (dkt. 269).
89
See Monitor’s 12th Report at pg. 68 (dkt. 431).
82
recent Academy graduates have been matched with experienced officers and Captains (Field
Training Officers) for an eight-week mentorship focused on good correctional practice and
interpersonal communication/conflict resolution skill development. While these individuals do
not yet have sufficient tenure to be considered “experienced,” this is one way that the
Department is trying to increase the number of staff with the requisite skill set to effectively
supervise and solve problems on the housing units. This is an encouraging step. Further, the
Department reports it has contracted with an external training consultant to provide a leadership
training course to 10 ADWs. The training consisted of about 7 sessions across 10 weeks.
With respect to the content of the Department’s new trainings, initial steps to develop and
refine its trainings following the entry of the Action Plan appeared promising but have since
deteriorated. The Monitoring Team’s assessment of newly submitted training materials for
ESU/SRT, ADWs, and a Nunez overview (discussed in the Department’s Management Structure
and Management of the Nunez Court Orders section of this report) revealed significant and
concerning deficits. Further, functional consultation with the Monitoring Team is simply not
occurring. Although Department leadership claims to be seeking input, the approach taken to
obtain the Monitoring Team’s input is such that no meaningful consultation with the Monitoring
Team can occur. 90
The Monitoring Team’s significant collaboration with the Department’s Training
Division rested on the exchange of a complete set of training materials such that lesson plans,
90
On numerous occasions, the Department provided copies of training materials to the Monitoring Team
mere days before a roll-out. On at least two occasions, training materials were provided on the Saturday
before the training was set to begin on Monday morning (e.g., the Captain Promotion training was
provided on Saturday, February 11, 2023 with training set to begin on February 13, 2023; Field Training
Program course materials were shared on the evening of Saturday, May 6, 2023 with training scheduled to
begin on Monday, May 8, 2023.). Additional examples are discussed in this report.
83
instructor cues, scenarios, group exercises and proficiency assessments could be reviewed and
discussed in detail. Most recently, training materials were shared primarily in outline form and
lacked the substance required for any meaningful collaboration. In many cases, the material
appeared to be outdated and/or compiled in a haphazard, non-cohesive manner and, of greatest
concern to the Monitoring Team, the content of the trainings is not always consistent with the
Nunez Court Orders, Department policies and directives, or feedback from the Monitoring Team.
Further, assuming the materials provided to the Monitoring Team are indeed the only materials
available related to each course, it raises significant concerns about whether the instructors
teaching the courses have sufficient instructional support and guidance about content and
whether Department leadership has sufficient understanding of course content to be able to
identify expected changes in staff practice. Most importantly, efforts at reforming the agency
are significantly undermined by such insufficient and deficient training programs and efforts
to improve practice and supervision are doomed to fail under such circumstances.
Outlined below are three recent examples, all of which occurred following the June 13,
2023 Emergency Court Conference, regarding training programs’ poor content and the lack of
consultation with the Monitoring Team.
• ESU/SRT Training: In April 2023, the Monitoring Team recommended that the
Department re-train all ESU/SRT staff. 91 In response to the Monitoring Team’s findings,
the Department reported it had begun to develop the training materials. In response to a
request from the Department and in an effort to support this work, on April 25, 2023, the
Monitoring Team provided detailed written feedback on considerations for inclusion in
the training for ESU/SRT. On June 2, 2023, the Department provided an outline of the
course, but the accompanying materials did not include any detailed or substantive
91
See Monitor’s April 24, 2023 Report at pg. 18.
84
information (including sufficient instructor cues or guides) to establish what information

was going to be provided to those receiving the training or the intended learning
objectives. The materials lacked substance and were too limited to enable the Monitoring
Team to properly assess the information and the messaging that would be conveyed
during the training. On June 6, 2023, the Monitoring Team submitted initial feedback
based on the limited information provided and requested more fulsome training materials
to permit a proper evaluation of the course. On June 14, 2023, the Monitoring Team was
advised that the Department had elected to proceed with ESU/SRT training on that day,
despite the fact that the requested training materials had still not been provided to the
Monitoring Team. 92 Why the Department elected to proceed with this training is unclear
given that the Deputy Commissioner of Training had advised the Monitoring Team on
June 5, 2023 that the Department “will craft a [training] schedule around [the Monitoring
Team] completing [its] review [of the ESU/SRT training materials].” The training
materials were finally produced on June 15, 2023, after the training had already begun.
In terms of substance, the training materials fail to address the areas of concern
regarding the practices of these teams which have been reported by the Monitoring Team
for years, the Monitoring Team’s feedback shared on April 25 and June 6, 2023 were not
incorporated, the course content itself is inadequate to address the work of these teams,
and at least some of the course content is inconsistent with the Department’s own policies
and procedures (e.g., the discussion of Incident Command is not aligned with the
Department’s practices regarding Level A/B alarms). The training materials are at a
rudimentary level that might be appropriate for an entry-level recruit but fall far short of
the depth of information and nuance needed to elevate the skill-level of the Department’s
“elite squad.” In addition, the training materials do not address the Monitoring Team’s
concerns about ESU’s excessive use of force when discussing various techniques,
providing only general precautions (e.g., “utilize situational awareness”) and ignoring the
specific problematic circumstances that need to be remediated (e.g., “do not take a rear-
cuffed individual to the floor face-first”). In addition, the training materials do not
92
It is the Monitoring Team’s understanding that ESU/SRT training occurred for some staff on June 14
and 15, 2023 and that the Department has elected to suspend all additional training until it has an
opportunity to consult with the Monitoring Team on the content of the training.
85
include any examples/scenarios that illustrate the Monitoring Team’s concerns about
ESU’s excessive use of force, making only general references to “a video” without
describing what the video shows and/or including video footage that features a regular
housing unit officer—not ESU staff (which are abundant among the videos the
Monitoring Team has reviewed). These materials are simply inadequate and have very
little potential to address ESU/SRT’s dangerous practices.
• ADW Pre-Promotional Training: The Monitoring Team repeatedly requested the ADW
training materials in May and June 2023. The training materials were eventually provided
on the evening of Thursday, June 15, 2023 and on the morning of Friday, June 16, 2023.
The Department advised the Monitoring Team that the training would begin on Monday,
June 19, 2023. This timetable clearly precludes meaningful collaboration between the
Department and Monitoring Team. The Monitoring Team’s review of these materials
suggests that they provide inadequate guidance to supervisors. In particular, the training
materials included only a superficial treatment of the ADWs’ duties without any
explanation of the standards or expectations in each area. For example, regarding the
ADWs’ responsibility to oversee Captains’ routine tours of the housing units, the training
materials provide none of the expected practices regarding frequency or substance and
offer no guidance as to how to develop these skills among one’s subordinates. This theme
is applicable to nearly every topic included in the ADW training curriculum. Again, the
training materials are simply substandard and inadequate.
• Overview of Nunez Consent Judgment: In response to the Monitoring Team’s request,
the Monitoring Team was provided training materials related to an overview of the Nunez
Consent Judgment on June 5, 2023. The Monitoring Team shared some initial feedback
the next day, June 6, 2023, noting that the training materials appeared outdated and did
not provide a sufficient description of the Nunez Court Orders or the current state of
affairs. On June 8, 2023, the Monitoring Team indicated that it would connect with the
relevant training staff during the following week (June 12-16, 2023) to discuss the
training. 93 However, on June 16, 2023, the Monitoring Team learned that the Department
produced a video featuring a senior Department executive delivering an overview of the
93
The Monitoring Team remains open to providing such assistance and information on a reasonable
timeframe.
86
Nunez Consent Decree and the Use of Force Policy. A transcript of this video is included
as Appendix D. This video was reportedly presented at the June 14 and 15, 2023
ESU/SRT training and possibly others. It is unclear why the Department did not
specifically consult the Monitoring Team on the production of this video or provide a
copy in advance of its deployment given its clear connection to Nunez and the Monitoring
Team’s specific request for any materials related to the content of the Nunez Court
Orders. The lack of consultation prior to implementation is particularly concerning given
that the Monitoring Team believes that parts of the video contain questionable messaging
and in some areas are misleading, if not factually inaccurate (discussed in the
Department’s Management Structure and Management of the Nunez Court Orders
section).
Conclusion
Tangible and concrete steps have been taken to infuse external correctional expertise into
the management of the Department and many, but not all, of the new leaders have started to
identify certain deficiencies and are working to correct them. However, a corresponding
improvement in the quality of staff supervision by ADWs and Captains in the jails has not been
realized. The Department has made questionable, if not poor, decisions regarding who it has
promoted. Further, while the number of ADWs has increased somewhat since the Action Plan
was entered, the number of Captains available to supervise officers in the jails has decreased.
Additional ADWs and Captains are needed to meet the supervision requirements of the Nunez
Court Orders. Furthermore, facility leaders report their continued struggles to ensure that
Captains (as well as officers) make meaningful rounds and have an appropriate span of control.
The poor quality of training being offered to ADWs and ESU/SRT means that even the
initial introduction to core concepts lacks potency and does not properly contextualize the
information with the requirements of the Nunez Court Orders. Further, the training materials that
have been recently produced and are being used are substandard and, even more concerning, are
87
in some areas factually inaccurate and/or misleading. Rather than improving staff practice and
encouraging compliance with the Nunez Court Orders and departmental policy, such poor-quality
training materials will serve to further undermine the reform effort.
Finally, because the quality of staff supervision is a less tangible requirement than many
of the Nunez Court Orders’ requirements that rely on the presence of a policy or the number of
staff or specific actions, it is incumbent upon the Department to clearly articulate and fully
explain its approach and process for increasing supervisors’ skills. Ultimately, improvements in
supervision or the failure to do so will determine to a large extent the success or failure of a key
element of the Nunez reform effort—that is materially changing staff practice on the ground to
ensure the safety of the incarcerated population and staff. Doing so will require Department
leaders at all levels to be candid and transparent with the Monitoring Team about the struggles
they are encountering. The ongoing failures to consult with the Monitoring Team are missed
opportunities. The Monitoring Team has extensive expertise in sound correctional practice and
the Department’s practices and procedures and can is a valuable source of information and
assistance to the Department.
88
UNIFORM STAFFING PRACTICES
The Department has a very rich complement of staff, but making sure they come to work
in the first instance and are then appropriately assigned to posts in a manner that ensures proper
coverage in the facilities has always been the issue. Addressing the Department’s staffing
problems thus requires a two-fold process. First, the Department must have adequate controls,
procedures, and enforcement mechanisms to manage staff who are on leave or who need to be
placed on modified duty. Second, the Department must also revamp its poor staff assignment
practices in order to maximize the deployment of staff within the jails and to ensure key housing
unit posts are always covered. This section explores the Department’s efforts to improve the
availability of staff and to deploy staff within the jails properly.
Efforts to Improve the Availability of Staff
In 2020 and 2021, the Department was crippled by the large number of staff out sick (20-
30% of the workforce) and the large number of staff with a restricted medical status (3-9% of the
workforce). 94 The historical practices relating to staff mismanagement combined with the mass
sick leave problem coalesced into a crisis, one that exacerbated extant safety threats and
threatened to fully collapse the system, hence the Action Plan’s emphasis on this issue. Since
2022, the Department has made great strides in its effort to increase the number and proportion
of staff available to work with the incarcerated population. This was accomplished via an
overhaul of the Health Management Division, charged with oversight of the sick leave and
94
Sick leave and restricted medical statuses are utilized for both work-related and non-work-related
illnesses and injuries.
89
modified duty processes, and by improving the enforcement of existing sick leave and modified
duty procedures. 95 The current status of those efforts and key outcomes are discussed below.
• Staff Availability: The number of staff who are unavailable to work has been markedly
reduced since the apex of the staffing crisis. The Department has made solid progress in
shoring up its sick leave procedures and addressing staff abuse of this benefit. Since
January 2022, when an average of 26% of staff were out sick on any given day, the
proportion of staff out sick decreased substantially to an average of 8% of staff out sick
on any given day in May 2023. Further, the proportion of staff on medically restricted
status decreased from 9% of staff on any given day in January 2022 to 6% on any given
day in May 2023. 96 During the year since the Action Plan has been in place, the number
of staff on sick leave has decreased about 45%, from an average of 951 staff in June 2022
to an average of 514 staff in May 2023. Further, the number of staff on the most stringent
modified duty status (MMR 3, not permitted to be in contact with the incarcerated
population) has decreased about 35% from an average of 624 in June 2022 to an average
of 403 in May 2023. Monthly data for sick leave, medically monitored/restricted and
AWOL status is provided in Appendix A.
95
A more detailed discussion of these matters can be found at the Monitor’s October 28, 2022 Report at
pgs. 44 to 45 and the Monitor’s April 3, 2023 Report at pgs. 23 to 30.
96
Medical restrictions are defined as follows: MMR 1 – No physical limitations. Only restrictions are the
overtime/tour restrictions of work environment. MMR 2 – Some physical limitations (able to work
categorized posts). Able to work a normal tour (in duration) where the job allows ample opportunity for
sitting with some standing, walking, or climbing stairs. (This employee cannot be expected to do
strenuous physical activity and cannot supervise an incarcerated individual alone.) MMR 3 – Serious
physical/psychological limitations. Physical abilities are more limited than those described above. HMD
Medical staff will specifically indicate the employee’s duty limitations, but generally staff in this category
cannot work with the incarcerated population.
90
Sick Leave, Medically Modified Duty and AWOL, January 2019 to May 2023
Month Total Headcount Avg. # Sick (%) Avg. # MMR3 (%) Avg. # AWOL (%)
January 2019
10,577 621 (6%) 459 (4%) Not Available
Pre-COVID-19
April 2020
9,481 3,059 (32%) 278 (3%) Not Available
Apex of COVID-19
September 2021
8,081 1,703 (21%) 744 (9%) 77 (1%)
First Emergency Court Hearing
January 2022
7,668 2,005 (26%) 685 (9%) 42 (1%)
New Commissioner
June 2022
7,150 951 (13%) 624 (9%) 16 (<1%)
Action Plan Effective Date
December 2022
6,777 754 (11%) 452 (7%) 7 (<1%)
End of 15th Monitoring Period
May 2023
6,516 514 (8%) 403 (6%) 10 (<1%)
Most Recent Data
• Unstaffed Posts & Triple Shifts: Important decreases in the number of unstaffed posts 97
and staff working triple shifts have occurred since the apex of the staffing crisis in 2021
when nearly 70 posts were unstaffed on any given day, as shown in the table below. More
recently, since the inception of the Action Plan, the number of unstaffed posts decreased
20%, from an average of 27.2 per day (June 2022) to an average of 21.7 per day (May
2023). However, the number of unstaffed posts per day has been steadily rising in 2023,
and there were 9 more unstaffed posts per day in May 2023 compared to January 2023.
The number of staff required to work triple shifts remained approximately the same (an
average of 6.8 staff per day in June 2022 versus 6.52 staff per day in May 2023. Monthly
data regarding unstaffed posts and triple shifts is provided in Appendix A. It must be
emphasized that any unstaffed post and any need for staff to work multiple shifts is
antithetical to a healthy and safe correctional operation, thus there is clearly more work to
do in this area. Note that this data does not account for situations where a staff member is
assigned a post but then leaves the post unattended for some period of time. The
97
Note, this does not include a post in which a staff member, after being assigned, may abandon that post.
91
Monitoring Team continues to detect this problem with disturbing frequency during its
routine review of use of force incidents.
Unstaffed Posts and Triple Shifts, July 2021 to May 2023

Unstaffed Posts Triple Shifts
Daily
Monitoring Period Total #
Average # Total # Triple Daily Average #
Unstaffed
Unstaffed Shifts 98 Triple Shifts
Posts
Posts
July to December, 2021 8,192* 68.3 3,717 20.7
January to June, 2022 5,523 30.7 1,950 10.8
July to December, 2022 99 3,509 19.5 808 4.5
June 2022 815 27.2 204 6.8

May 2023 671 21.7 202 6.5
* Note: The Department did not begin tracking unstaffed posts until September 2021, so data for this period
does not include July or August, 2021.
• Overtime: An important indicator of efficient workforce management is the level of an

agency’s use of overtime. Given the Department’s problems with inefficient staff
scheduling and deployment and abuse of leave benefits, overtime has become a routine
strategy to increase staff availability on any given shift. Overtime can of course be used
efficiently to address temporary staff shortages and unusual situations. However, using
overtime to address chronic staffing issues, as this Department does, has significant fiscal
consequences and an obvious negative impact on staff wellness and morale. The number
of occasions where staff are required to work triple tours decreased, but the Department’s
monthly overtime costs increased significantly—24%--during the past 18 months (i.e.,
$18,847,000 in January 2022 versus $23,358,000 in May 2023. The table below shows
This data includes staff who worked any amount of a third consecutive tour, including staff who
98
worked less than, equal to, or greater than 3.75 hours.

99
The data provided in this row in the Monitor’s April 3, 2023 Report (at pg. 15) included an average
instead of the total in the “Total # of Unstaffed Posts” column in the July-December 2022 data. As a
result, the calculation of the “Daily Average # of Unstaffed Posts” was not correct. The data in both
columns has been corrected in this report.
92
the steady increase in the Department’s monthly overtime costs for uniform staff since
January 2022.
Overtime Data for Uniform Staff

January 1, 2022 to May 31, 2023
Month All Uniform Month All Uniform
Jan-22 $18,847,000 Jan-23 $22,893,000
Feb-22 $18,226,000 Feb-23 $20,819,000
Mar-22 $20,969,000 Mar-23 $23,855,000
Apr-22 $20,783,000 Apr-23 $22,414,000
May-22 $21,423,000 May-23 $23,358,000
Jun-22 $21,721,000
Jul-22 $22,064,000
Aug-22 $22,453,000
Sep-22 $22,006,000
Oct-22 $22,901,000
Nov-22 $22,215,000
Dec-22 $22,276,000
• Improved Management of the Health Management Division: 100 The Department has
significantly improved the management of HMD. The unit is supervised by the First
Deputy Commissioner. A Chief Surgeon has been appointed to HMD and an Assistant
Deputy Warden supports the unit’s management. A thoughtful and thorough assessment
of HMD was conducted during Summer 2022 to identify deficiencies and inefficiencies.
The results of the evaluation revealed significant mismanagement and corruption. 101 In
short, poor supervision and staff practices, staff shortages, lack of collaboration among
HMD units, and a disconnect between the division and the facilities were all impeding
the management of staff leave benefits and modified duty statuses. These findings led
HMD to engage in a significant overhaul to improve practices and increase efficacy and
reduce abuse in the system. 102
100
As required by the Action Plan § A, ¶ 2(e) and § A, ¶ 3(b)(iii).
101
See Monitor’s October 28, 2022 Report at pgs. 46-47.
102
See Monitor’s April 3, 2023 Report at pgs. 25 to 29.
93
• Policy Revisions: 103 The Department’s sick leave policies and procedures were old and
outdated, some dating back more than 20 years. The Home Confinement Visit policy was
updated in May 2022, right before the Action Plan was entered by the Court in June
2022. The revised policy created more sensible requirements for determining whether
someone who is out sick has remained at home as required (e.g., fewer door knocks and
fewer phone calls) and has resulted in improved enforcement. The sick leave and absence
control policies were revised and implemented on May 15, 2023, about eight months
after the deadline set by the Action Plan and following persistent follow-up by the
Monitoring Team. The revised policies clarify the processes for managing sick leave and
absence control and clarify the situations in which a staff may be terminated for abusing
sick leave benefits. 104 With respect to the Department’s MMR policy, progress towards
documenting new procedures has been slow and arduous. The Department finally shared
a proposal regarding its plan to significantly reduce the use of Medically
Modified/Restricted duty status and to prevent the abuse of this designation. First, the
Department recently initiated another review of all staff on MMR status. Doctors
employed by the Department will evaluate all staff on this status to determine if they
should remain on the same status, whether the MMR level should be changed, or whether
they can return to work. As of November 1, 2023, any staff identified to remain on MMR
status will only be permitted to stay on the status for a certain period of time. 105
Beginning on May 1, 2024 the Department will eliminate the use of levels for MMR
status with varying amount of contact with people in custody. Instead, a staff member
will be placed on MMR, with no contact with people in custody, if only an HMD doctor
determines that the staff member: (1) has a line of duty injury, where staff are permitted
by law to be on limited duty for up to two years; or (2) is pregnant or has post-partum
depression, or (3) they have a serious medical illness (such as cancer or other terminal
103
As required by the Action Plan § A, ¶ 2(d).
104
A staff member may be terminated if within a 12-month period, the staff member is out sick on 40 or
more workdays, or out sick on 15 or more occurrences, or out sick on 10 or more weekend days
(including Fridays and scheduled days off (“pass days”) from a 5x2 rotation), or out sick on 10 days
immediately before or after a pass day, or out sick for 15 days on a combination of weekend days, pass
days, or days before or after a weekend or pass day.
105
90 days for MMR 3 and 60 days for MMR 2 or MMR 1.
94
illness). If an officer does not meet one of these criteria as determined by HMD, they will
not be eligible for MMR status and thus may be assigned to a post where they have
contact with people in custody. The Department has shared a copy of its written proposal
with the Monitoring Team and also provided a copy to the unions for review. 106 The
Department issued the plan via teletype on July 10, 2023.
• Evaluation of Current Uniform Staff on Sick Leave & Medically Restricted
Status: 107 HMD has utilized a number of initiatives to evaluate and reduce the number of
staff on sick leave or restricted status and to hold staff who abuse these statuses
accountable:
o Initiatives to Reduce Abuse: HMD has utilized a number of different tactics
including increasing scrutiny of documentation and medical records; increasing
Home Confinement Visits; increasing referrals for discipline of staff violating
protocols; referrals to DOI; identifying staff with consecutive AWOLs;
identifying staff with chronic absences; and evaluating medical facilities. 108
o Accountability: HMD and the Trials Division have made significant progress in
holding staff accountable for abuses of sick leave and modified duty, which has
resulted in more staff being available to work than at any time since the staffing
crisis began in 2021. The Department has several options for addressing staff who
are chronically absent or who have abused sick leave policies, including placing
staff on unpaid leave, 109 non-disciplinary separation proceedings, 110 disciplinary
106
The Correction Officers’ Benevolent Association contract provides that the Department will provide
notice of any new directive affecting terms and conditions of employment, see Article XVI, section 15,
“Sharing of Directives: The Department shall send the union a copy of any directive or order affecting
terms and conditions of employment at least ten (10) calendar days prior to issuance, except where the
Department determines emergency circumstances make such a timeframe impracticable, in which case
the policy will be shared as soon as practicable prior to issuance.”
107
As required by the Action Plan § A, ¶ 2(f).
108
109
Pursuant to New York Civil Service Law 72, a staff member may be placed on unpaid leave if they are
on “indefinite sick” or MMR status for a year or more for non-work-related reasons.
110
Medical and AWOL Separation is a non-disciplinary action (pursuant to Civil Service Laws §§ 71 to
73 and New York City Administrative Code § 9-113) to separate an employee who has been
cumulatively/continually out sick, unavailable to work, AWOL 5 days or more, or unable to fulfill work
duties for a significant period of time, generally one or two years.
95
proceedings (known as Medical Incompetence), 111 and suspensions. Further, the

Department may refer staff to the Department of Investigations (“DOI”) to
investigate cases of suspected staff abuse of sick time or restricted status when the
conduct of the staff member appears to be criminal in nature.
 Medical Incompetence Cases:
• Pending Cases: The Monitoring Team has recommended deadlines
for closure for two sets of pending cases.
o For cases that were pending as of October 2022, the
Monitoring Team set a deadline for closure of April 30,
2023. Of the 386 cases pending at that time, 360 have been
closed or the final closing memo is awaiting a signature
(93%); 18 cases involved staff on approved leave (e.g.,
military leave or maternity leave), thus the cases cannot be
addressed at this time (5%); and eight cases are in trial or
awaiting other follow-up from OATH (2%).
o For cases pending between October 1, 2022 and March 31,
2023, the Monitoring Team set a deadline for closure of
August 31, 2023. Of the 340 cases, 190 have been closed
(56%) and 150 remain pending (44%) as of May 31, 2023.
o As of May 31, 2023, a total of 257 Medical Incompetence
cases are pending. This total includes pending cases from
the two sets described above, and those identified since
March 31, 2023.
• Cases Brought: A total of 201 cases were brought in 2021, 406
were brought in 2022, and 182 were brought between January and
May 2023.
• Cases Resolved: A total of 705 cases were resolved between
January 2022 and May 2023. The table below presents data related
to case closure type for 2022 and 2023.
111
Medical Incompetence is a disciplinary action in response to a variety of patterns of behaviors related
to the abuse of the sick leave benefit.
96
Closure Type for Medical Incompetence Cases Resolved, 2022 and 2023
Closure Type 2022 Jan-May 2023 Total
Total Cases Closed 363 100% 342 100% 705 100%

Removal from DOC Employment* 184 51% 95 28% 279 40%
NPA for Compensatory Time 6 2% 8 2% 14 2%
NPA with Probation or Suspension 146 40% 193 56% 339 48%
Dismissed** 27 7% 46 14% 73 10%
* This includes Medical Separation, resignation, retirement, termination, and termination via OATH.
** This includes cases that were Administratively Filed and those dismissed at OATH.
 Suspensions: Between January 2022 and May 2023, a total of 478 staff
were suspended for abusing sick leave/absence control policies or for
being AWOL (365 staff were suspended for home confinement violations
and 113 staff were suspended for being AWOL 112).
 Chronic Absence: In order to discourage staff from utilizing an
unreasonable number of sick days, staff may be designated “chronically
absent” (i.e., those out sick for 12 days or more in a rolling 12-month
period). This designation triggers limits on various discretionary benefits
and privileges and impacts the staffs’ ability to be promoted, thus serving
as a deterrent to excessive sick leave. The number of staff placed on this
status increased exponentially in 2022, with over 1,000 staff now
identified as chronically absent. While the increased number of staff
identified for this designation is an important step, the facilities are
responsible for processing staff with this designation so they are actually
designated as chronic absent in their personnel file. This process is
incredibly protracted. Furthermore, the facilities’ tracking mechanism is
not well-maintained which inhibits their ability to properly administer the
status. For instance, the Department reports that only 50% of the staff
In 2021, a total of 165 staff were suspended for being AWOL. The reduction in suspensions for
112
AWOL in 2022 and 2023 is likely due in part to fewer staff being AWOL.
97
identified as chronic absent in 2023 have been processed as such. The

Monitoring Team continues to recommend the Department improve these
practices to ensure that those staff who should be identified as chronic
absent are in fact then designated as such, so that the various disincentives
can be applied. The label alone will not result in the desired outcome.
o Referrals of Staff Who Abuse Sick Leave or Restricted Status: 113 HMD’s
increased vigilance about the quality of the documentation has identified at least
20 instances of potentially fraudulent documentation that may rise to the level of
criminal misconduct. These cases have been referred to DOI for investigation and
at least three referrals have resulted in criminal prosecution. 114
Staff Assignments to Posts in the Jails
The Department has lacked an appropriate framework and basic tools to properly
administer staff assignments, particularly because of poor scheduling and deployment practices,
which have been discussed in detail in various Monitor’s Reports. 115 The Action Plan’s
requirements relating to streamlining staff scheduling and assignment within the facilities are
discussed in this section. A discussion regarding the assignment of supervisors within the
facilities is included in the Leadership, Supervision, and Training section of the report.
The proper deployment of staff is critical to improving safety in the jails. When present in
the housing units in appropriate numbers, staff who follow required safety procedures, who
communicate in constructive ways with incarcerated individuals, and who are able to solve both
interpersonal and logistical problems when they arise can effectively address the circumstances
113
As required by the Action Plan § A, ¶ 2(g).
114
See, Eastern District of New York, Three Former New York City Correction Officers Plead Guilty to
Sick Leave Fraud, https://www.justice.gov/usao-edny/pr/three-former-new-york-city-correction-officers-
plead-guilty-sick-leave-fraud.
115
See Monitor’s 11th Report at pgs. 10 to 14 and March 16, 2022 Report at pgs. 30 to 44.
98
that currently result in physical harm to both incarcerated individuals and staff alike. The
Staffing Manager, in conjunction with his team, has been working to untangle the Department’s
archaic practices and taken many steps to modernize the scheduling process, to ensure staff are
properly assigned to priority posts and to begin to teach facility leaders how to staff their
facilities efficiently and effectively. These initial steps have focused primarily on getting staff in
the right places, which is a necessary precursor to skill development.
These innovations remain in the early implementation phase and as such have not yet
resulted in a staffing strategy that demonstrably increases safety or reduces the risk of harm. The
Monitoring Team’s routine review of violent incidents and those that involve a use of force
(along with onsite observations) continues to reveal an overabundance of staff responding to
incidents and the presence of large numbers of staff in locations that do not involve direct
supervision of incarcerated individuals (e.g., corridors). In the most glaring example of the
failure to effectively supervise the incarcerated population, too often, staff simply abandon their
assigned posts, leaving the housing units unattended. 116 As discussed in the Security, Violence,
and Use of Force section of this report, staff being off post has been a contributing factor to both
serious violence and the unnecessary and excessive use of force to regain control of situations
that escalated during the staff members’ absence. A chart of use of incidents involving posts with
no staff is included in Appendix A of this report.
116
The Department does not maintain data on the number of Staff that abandon their post. However,
Rapid Reviews identify use of force as a result of posts in which a staff member is not on post (either
because a staff member is not assigned or the assigned staff member walked away and the post is
unmanned).
99
Outlined below are the steps that have been taken to address the requirements related to
assignment of Staff pursuant to the Action Plan:
• Roster Management Unit: 117 The Schedule Management and Redeployment Team
(“SMART”) serves as the Department’s Roster Management Unit and is under the
direction of the Staffing Manager. SMART includes one supervisor, fourteen officers,
and a civilian administrative assistant. The officers were previously assigned to
scheduling duties in the jails but were reassigned to SMART to ensure consistency and
accountability. Overall, the Staffing Manager reports that the SMART unit has reduced
the number of officers in the Facilities involved in scheduling by about 50%, and allowed
the remainder to be assigned to posts within the facility with direct supervision
responsibilities. The Staffing Manager has been actively interviewing candidates to serve
as the SMART manager, though recent interviews have not identified a viable candidate.
The Staffing Manager believes the salary to be competitive but is planning to repost the
position with additional detail regarding the position’s location/duties and to clarify that
previous relevant experience includes fields other than law enforcement to attract a
broader group of candidates.
• Modern Tools for Staff Schedules & Tracking Attendance
o Attendance Scanning System: 118 The Department is utilizing a staff scanning
system wherein each staff member scans their ID card upon facility entry/exit and
arrival/departure at their assigned post to ensure timekeeping integrity. This was
first rolled out at RNDC in September 2022, EMTC in December 2022, GRVC in
January 2023, AMKC in February 2023, RMSC in March 2023, NIC/WF in April
2023, and VCBC in May 2023. The attendance scanning system is expected to
roll out at OBCC in July 2023, when the facility reopens, and will then roll out at
Bellevue Prison Ward and the courts before the end of 2023.
117
As required by § C, ¶ 2.
118
As required by § A, ¶ 2(c).
100
o Implementing InTime Scheduling Software: 119 The Department has procured and
customized a cloud-based, single source tracking system, InTime. SMART and
facility staff were trained to use the system, and InTime replaced the legacy
paper-based system at RNDC in January 2023, GRVC in February 2023, EMTC,
VCBC, NIC/WF in March 2023, and RMSC in April 2023. InTime will roll out at
OBCC when it opens in July 2023, along with the Courts. InTime will not be used
at AMKC given its imminent closure. A timeline for rolling out InTime at
Bellevue is still to be determined.
o Improved Management of Staff Rosters: 120 Converting staff rosters from a
handwritten document to an electronic platform is an obvious way to improve the
management and deployment of staff. Prior to implementing the InTime system at
a given facility, the Staffing Manager obtained a list of all budgeted posts to
ensure that unbudgeted/”off-books” posts could no longer be used except in
emergency situations (e.g., suicide precautions, hospital transport, etc.). 121 Each
facility compiled a list of the staff assigned to the facility and their
schedule/shift. 122 The software provides a format for a clear, legible “line-up” that
identifies which staff are assigned to which post, each day of the week. Specific
staff assignments are made collaboratively between SMART and the facility, and
the Staffing Manager recently tightened procedures to prevent facilities from
circumventing the approved line-up. SMART staff also verify the implementation
of the approved daily line-up (i.e., verifying that the person assigned is actually
working the post) via direct contact, the staff attendance scanning system, and /or
Genetec video. Going forward, the Staffing Manager also plans to evaluate all
posts in each facility to determine which posts to maintain, which to eliminate,
and which to convert to civilian positions.123
119
As required by § C, ¶ 5.
120
As required by § C, ¶ 3(i).
121
As required by § C, ¶ 3(viii).
122
As required by § A, ¶ 2(b).
123
As required by § C, ¶ 3(viii).
101
o Priority Posts: The Department reports that in each facility, posts in the housing
units, central control, intake, and those that facilitate programming are prioritized
to ensure these posts take precedence on all daily rosters. The job responsibilities
of many facility posts have also been analyzed to maximize efficient deployment.
Procedures are in place to ensure that priority posts are filled before non-priority
posts (i.e., clear direction from the staffing manager, procedures that prevent
facilities from altering an approved line-up, and visual cues in the InTime
platform that highlight which posts must be filled first). 124 SMART staff provide
real-time assistance to the facilities to ensure all priority posts have a staff
member assigned per the schedule and that schedules are accurate (including
properly documenting reasons staff may be out such as training, leave, FMLA,
etc.).
• Maximizing Deployment of Staff: The Department’s efforts to maximize deployment of
staff within the facilities is still very much a work in progress and remains an area of
concern.
o Deployment of Experienced Staff in Housing Units: 125 Currently, the facility
Wardens/designees suggest staff for assignment to housing unit posts, which are
then approved by SMART. The criteria for housing unit assignment (to deploy
sufficiently experienced staff to these posts, as required by the Action Plan) has
not yet been formalized, as the initial focus has been on ensuring all housing unit
posts are covered. There is no evidence that there is any concerted practice to
ensure that experienced staff are deployed to the housing units.
 The Department is making efforts to increase staff skill/experience via an
extended Field Training program for new recruits to increase the number
of staff with the requisite skill set discussed in more detail in the
Leadership, Supervision, Training section of this report.
124
As required by Action Plan § C, ¶ 3(i).
125
As required by § C, ¶ 3(iv).
102
o Reduction of Awarded Posts: 126 First, the Department reported that beginning in
Fall 2022, specific posts are no longer awarded to staff. However, the
Department’s efforts to reduce the number of awarded posts previously assigned
has been mired in unnecessary confusion, lack of internal coordination and
bureaucracy. The City and Department have repeatedly claimed that the
Department has the unilateral ability to reduce awarded posts. Despite these
repeated claims, those individuals tasked with doing the work to reduce awarded
posts have maintained that they are not able to take such action. On at least four
occasions, despite assurances to the Monitoring Team that the Department can
reduce awarded posts, staff reported the contrary. In addition, after persistent
follow-up from the Monitoring Team for over a year, the Department has now
determined that its data related to awarded posts was inaccurate (despite repeated
claims to the contrary) and furthermore, found that individuals who were not
officially designated with an awarded post were nonetheless treated as such
(meaning the facility continued to assign the individual to a specific post, even
when it was not required to do so). The Department now claims it has updated this
data, but it has not provided the Monitoring Team with the methodology for how
the revised data was generated, so the Monitoring Team is unable to assess the
veracity of the data. Further, the Department reported that staff who had not been
officially awarded a post (i.e., the award was not documented) but had been
informally assigned to a specific post have been removed from these assignments.
This verbal report to the Monitoring Team was not accompanied by any
documentation and thus the report cannot be verified. Given that the Department
reports it does not have an internal mechanism to monitor this process, it is
difficult to determine the veracity of any of these claims. Further, during the past
year, the Department has submitted multiple plans to reduce awarded posts, but
none have been implemented. Despite a request for an update and information by
May 22, 2023, the Monitoring Team has not received any further information.
126
As required by § C, ¶ 3(v).
103
o Maximizing Staff Schedules: 127 The Department reported on June 15, 2023 that it
is “actively working on schedule optimization, which [is defined] as developing
and implementing an algorithm to maximize staffed posts (minimize unstaffed
posts) and control overtime. Optimizing the schedule is a collaborative effort with
researchers from Columbia University. [The Department is] currently in the
algorithm development stage, which is primarily operations research. The
variables being assessed include: the number of posts; the number of staff
available; schedule and tour length; and the probabilities of posts being staffed
using historical staffing data and statistical estimates. Possible schedules are
currently tested via computer modeling and the resulting data is analyzed and
evaluated for practical implementation. It is important to note that this modeling
phase is not simply an analysis of existing schedules, but of all possible schedules
for a certain number of posts and varied number of staff.” 128 It is unclear how
long this process will take before optimized schedules can be implemented, but it
appears the research phase has been underway for at least six months.
 In the meantime, the Department has made several changes to staff
schedules. First, given the increases in the number of staff available to
work with the incarcerated population discussed above, as of early 2023,
all facilities now operate using three 8-hour shifts rather than two 12-hour
shifts. 129 Further, the majority of posts in the facilities now operate
according to these same three shifts, in contrast to the dizzying array of
split shifts that characterized previous conventions.
 The Department is also converting a segment of staff to a 5x2 schedule (5
days on, 2 days off) from a 4x2 schedule to increase the proportion of the
workforce who are at work on any given day. On a 5x2 schedule, two
thirds of the workforce are at work on any given day, in comparison to a
127
As required by Action Plan § C, ¶ 3(vi).
128
This information was provided almost six months after the Monitoring Team’s initial request for
information.
129
Beginning in 2021, at the apex of the staffing crisis, the Department switched to a 12-hour work shift
because this convention requires fewer staff.
104
4x2 schedule where only half of the workforce is at work on any given
day. Thus, the 5x2 schedule provides greater flexibility for coverage, as
required by the Action Plan. 130 The Monitoring Team requested updated
data regarding the number of staff on 4x2 on April 6, 2023. The data was
produced almost three months later at the end of June. The Monitoring
Team sought clarification about the data within 2 business days of
production and learned that the individual responsible for the data was on
vacation and further information could not be provided until after the
filing of this report. As a result, the Monitoring Team does not believe
production of this data is appropriate because additional context and
verification must occur before the data can be reported. As noted in other
sections of this report, this is yet another example of the Department’s
failure to produce timely information to the Monitoring Team that directly
impacts the ability to assess compliance and provide reliable and accurate
information to the Court and the Parties.
 Finally, the number of “squads” (i.e., groups with the same days off) was
also reduced from six to three, which simplifies the task of managing the
workforce and provides for greater flexibility.
o Reduction of Uniformed Staff in Civilian Posts: 131 There has been very little
progress in the Department’s efforts to reduce the use of uniform staff assigned to
posts with duties that can be reasonably accomplished by a civilian. The
Department reports that it has transferred 7 uniform positions at HMD to civilian
posts and that it intends to transfer 16 uniform staff engaged in timekeeping to
civilian posts, but this has not yet occurred. In a system of this size, this
complement of only 23 uniformed staff is hardly sufficient to meet the
requirements of the Action Plan. Although the Department has reported for
130
A 5x2 schedule where staff work five consecutive 8.5-hour workdays, followed by 2 consecutive days
off. Staff on 4x2 schedules work four consecutive 8.5-hour workdays, followed by 2 consecutive days off.
By way of illustration, not accounting for staff on leave, 300 staff working 4x2 schedules are able to fill
2,800 posts over the course of 2 weeks, but 300 staff working 5x2 schedules are able to fill 3,000 posts
over 2 weeks. This difference is solely due to the differing work schedules and assigned days off.
131
As required by Action Plan § C, ¶ 3(vii).
105
months that Human Resources, the Chief of Staff, and the Office of
Administration has been meeting with facilities bi-weekly to identify posts that
are currently manned by uniformed staff and should be civilianized, the facilities
have not yet identified any such posts (such as those responsible for
administrative tasks) and nor have any such posts been identified in the many
other divisions within the Department. The Monitoring Team questions the
veracity of the Department’s report regarding this assessment. At worst these
meetings are not occurring as reported and, at best, the process has been
completely ineffective given the lack of results. The Department reports that via
budget cuts, the number of civilian staffing lines has been reduced. If the
Department maintains that the relevant duties remain necessary, it appears the
Department may be suggesting that a budget-driven reduction in civilian staff
may require the Department to use uniformed staff to fulfill the relevant duties.
Further, despite claims that the Department’s staffing assessment identified
certain administrative posts in the facilities (that have historically been filled by
uniform staff) to be altogether superfluous, the Department has not taken any
action to eliminate these unnecessary posts, and thus they remain filled by
uniform staff.
o Post Analysis: 132 The Staffing Manager reported that an analysis is currently
underway and that he will make recommendations to either keep, eliminate, or
civilianize each post in each facility.
o Relief Factor: 133 The Department has not yet developed a relief factor. A relief
factor calculation relies on leave and absence patterns of the workforce and so
current and accurate trend data must be available. Furthermore, the Department
reports that the relief factor will be customized for each facility, and each rank,
132
As required by Action Plan § C, ¶ 3(viii).
133
As required by Action Plan § C, ¶ 3(ix). A shift relief factor is the number of full-time-equivalent
(FTE) staff needed for a single shift to fill a post that is filled on a continuous basis. In staffing
calculations, the shift relief factor is multiplied by the number of staff assigned to a specific post to
determine the number of staff needed to provide continuous coverage for the post. Pertinent variables
include characteristics of the post (number of hours/days it must be filled) as well as leave and absence
patterns of the workforce, including both paid and unpaid leave.
106
which will take some time given that the full roll-out of InTime was only recently
completed. Finally, extracting the necessary data (e.g., amount of leave taken per
officer and categories of leave) from InTime has proved more challenging than
anticipated.
Conclusion
The Department has made progress in increasing the availability of its uniform workforce
and untangling many of its dysfunctional staffing practices, in particular those related to sick
leave and modified duty, that have been entrenched for decades. Nonetheless, significant work
remains (e.g., better managing staff on modified duty) and practice improvements need to be
sustained over time to achieve the goals of the Action Plan. Given the complexity of the task and
the sheer number of staff who must be managed, this is no small task. The newly available staff
must be properly scheduled and deployed in order to ensure that posts do not go unmanned, and
that staff are not unduly burdened with overtime.
While useful progress in modernizing the Department’s staff scheduling and deployment
practices has occurred and the central organizing force of the SMART unit is a valuable asset,
staffing practices have not yet been transformed. The facilities continue to need significant
assistance and oversight to ensure that new practices become routine and are not circumvented.
Furthermore, the Department continues to operate the jails with unstaffed posts each day and,
although reductions to the use of triple tours have occurred, overtime continues to be utilized far
too frequently. Further, the Department has not developed a coherent strategy for minimizing the
use of awarded posts, still has not eliminated uniform posts in the jails that it identified as
superfluous, and has identified only a small number of posts for conversion to civilian positions.
Staffing analyses and post analyses need to be completed for each jail, schedules need to be fully
optimized, and a proper relief factor needs to be calculated.
107
Additionally, the Monitoring Team’s routine incident reviews and site work continue to
reveal an overabundance of staff responding to incidents and large numbers of staff still
congregating in corridors and other common areas, even as housing unit posts go “unmanned.”
The Department reports it has been working to improve the deployment of supervisors across
tours and to ensure better coverage in the housing units. However, the Department has yet to
produce data to illustrate their efforts and thus the Monitoring Team cannot verify the
Department’s reports of improved practice.
108
MANAGEMENT OF INCARCERATED INDIVIDUALS
In order to achieve the goals of the Nunez Court Orders, the Department must focus on
certain operational matters that contribute to the underlying conditions that brought about the
unsafe conditions and high rates of unnecessary and excessive force. The Action Plan requires
improvement to specific practices in three such areas: intake processing, classification, and
restrictive housing. Each has its own unique impact on the Department’s operations and security
practices, and the requirements are intended to minimize the potential for disruptive behaviors
that could catalyze the need to use force and ensuring safer facilities by: (1) reducing the
individuals who are sent to intake and length of stay while there, (2) by fortifying the response to
misconduct via custody classification/reclassification and (3) implementing an appropriate
restrictive housing program. Together these initiatives can support a reduction in the frequency
of violent behavior with a consequent reduction in the need to use force.
Effectively preventing violent and disruptive behavior requires a multi-faceted strategy
that goes beyond classification and restricted housing. The Monitoring Team has long
encouraged the Department to pursue strategies that increase structure during out-of-cell time
and that effectively incentivize positive behavior and hold individuals accountable for
misconduct, all of which have been negligible in this agency. The jails would benefit from posted
daily schedules in each housing unit that articulate the activities and services that should be
provided each day (e.g., recreation, barbershop, commissary, law library, meals, hygiene, etc.)
and facility leaders should endeavor to limit idle time via programming and other structured
activities. In addition, incentives for positive behavior and consequences for less serious
misconduct are essential elements of any violence/use of force reduction effort. Some of the
facilities have made recent improvements in this area, such as GRVC’s Beacon Center and
109
RNDC’s PEACE Center (which offer enhanced leisure time activities and programming) and
various tournaments. The Department has also begun to impose commissary restrictions as a
penalty for less-serious infractions (previously, the only sanctions available were a verbal
reprimand or Punitive Segregation). These types of initiatives should be maximized in order to
reduce the frequency of violent and disruptive behavior, which should in turn decrease the
number of situations where staff must intervene and thus decrease the risk of unnecessary and
excessive use of force.
Intake
The Department’s effort to achieve compliance with the provisions regarding intake in
the Nunez Court Orders (collectively the “intake provisions”) 134 has been subject to significant
scrutiny and a Motion for Contempt before the Court. 135 The Monitoring Team has issued
multiple reports this year with updates on the work related to intake. 136 Further, the City’s and
Department’s three submissions to the Court describe the efforts to achieve compliance with the
requirement to track the length of stay of all individuals in intake units and to process them
through intake within 24 hours. 137 Overall, the Department has made progress with respect to
improving the physical conditions in intake units and efficiently processing individuals through
intake, but the Department has made a number of missteps and the process of implementing
reliable practice has taken far longer than expected.
134
The specific intake provisions contained in the Nunez Court Orders are the First Remedial Order, § A,
¶ (3), Second Remedial Order, ¶ 1(i)(c) and the Action Plan § D, ¶ 2(b) and § E, ¶ (3)(a)-(b).
135
See March 13, 2023 Order (dkt. 511).
136
See Monitor’s February 3, 2023 Special Report (dkt. 504), Monitor’s April 3, 2023 Report (dkt. 517),
and Monitor’s April 24, 2023 Status Report (dkt. 520).
See City’s April 17, 2023 Letter and Miller Affidavit (dkt. 519), the City’s May 17, 2023 Letter and
137
Miller Affidavit (dkt. 532), and the City’s June 21, 2023 Letter and Miller Affidavit (dkt. 553).
110
Intake is the processing center for people entering, exiting, and moving within the jails,
and the Department uses two types of intake units. First, individuals newly admitted to DOC
custody (“new admissions”) must be processed through intake before they are assigned to a
housing unit. Second, individuals may be brought to an intake unit within each individual jail
either for the purpose of exiting/re-entering the facility (e.g., going to/returning from Court or the
hospital, or moving to another facility) or to be transferred within the facility (e.g., going to the
clinic following a use of force or going to another housing unit) (“inter/intra facility transfers”).
The overall goal of the Nunez intake provisions is for the Department to ensure that
intake is utilized only for these specific purposes (and is no longer utilized as a de facto de-
escalation unit) and to ensure that individuals are processed through intake efficiently and do not
languish beyond a 24-hour period. Limiting the length of stay in an intake unit is important
because the physical plant of an intake unit (typically, congregate pens with benches (no bunks
and shared toilets) means it is not a suitable long-term housing location. Intake units are intended
to be processing hubs, and thus the efficiency of that processing is the central concern. Outlined
below is a summary of the Department’s efforts to process and track new admissions and
inter/intra facility transfers.
• Intake for People Newly Admitted to the Department
The procedures in place for processing people who are newly admitted to the Department
are described in the Monitor’s February 3, 2023 Report at pgs. 15 to 18 and Monitor’s April 3,
2023 Report at pgs. 74 to 75. Unbeknownst to the Monitoring Team, the Department issued a
policy regarding New Admission processing on April 10, 2023. 138 On June 14, 2023, the
138
See June 8, 2023 Report at pg. 23 to 24.
111
Department acknowledged to the Monitoring Team that promulgation of the New Admissions
policy without first consulting the Monitoring Team was an error and the policy was rescinded
on June 20, 2023. 139 With respect to the physical conditions in intake units, the Monitoring Team
also reported in late May/early June 2023 the details of two incidents that occurred in intake that
raised concerns about the management and supervision in these units. 140
o Length of Stay for New Admissions in Intake
New admission processing data from January to May 2023 identifies the proportion of
people who were processed through new admission intake within the required 24-hour timeline.
The data below combines information from EMTC (used for male new admissions) and RMSC
(used for female new admissions). Two different data points can be utilized as the “start time”
when tracking length of stay: the time that an individual is transferred from NYPD to NYC DOC
custody, which typically occurs in a court setting (custody time) or the time that an individual
arrives at the intake unit (arrival time). Both are considered separately in the analysis below. 141
The “end time” at which intake processing is considered complete is the time that the individual
is either transferred to a housing unit or is discharged from custody (for those who make bail or
are not returned to custody following a return to court or trip to a hospital).
139
See also Miller June 21, 2023 Affidavit (dkt. 533-1) at ¶ 10.
140
See the Monitor’s June 8, 2023 Report at pg. 43.
141
As noted in the Monitor’s February 3, 2023 Special Report on Intake (dkt. 504), the Monitoring Team
assesses the time each person arrives in the intake unit (i.e., “arrival time”) compared to the time the
individual is transported to their assigned housing unit when calculating whether the 24-hour requirement
has been met. Counsel for the Plaintiff Class has advised the Monitoring Team that it believes that the
assessment of compliance should be based on the time an individual is taken into custody (i.e., “custody
time”). Discussions about the appropriate compliance standard will occur in conjunction with the
discussion related to clock stoppages. Given that, this report provides outcomes using both data points for
the Court’s consideration.
112
As shown in the section under the orange bar in the table below, whether using custody
time or arrival time as the starting point, nearly all individuals admitted between January and
May 2023 were processed within a 24-hour period. Using custody time as the starting point, 95%
of new admissions were processed through intake in under 24 hours. Using arrival time as the
starting point, 97% of new admissions were processed through intake in under 24 hours. These
calculations were made using a continuously running clock, without deducting time for clock
stoppages, which are described in more detail below.
Intake Processing Times for All New Admissions

January 5 to May 31, 2023
Per Custody Time Per Arrival Time
Outcome
N=8,258 100% N=8,258 100%
Housed/Discharged within 24 hours 7,809 95% 7,972 97%
Housed/Discharged beyond 24 hours 449 5% 286 3%
Length of Stay (“LOS”) Beyond 24 Hours
LOS (# hrs. overdue) 449 5% 286 3%
24-27 hours (≤ 3 hrs.) 161 1.9% 113 1.4%
27-30 hours (3-6 hrs.) 92 1.1% 61 0.7%
30-33 hours (6-9 hrs.) 67 0.8% 34 0.4%
33-36 hours (9-12 hrs.) 41 0.5% 18 0.2%
36-48 hours (12-24 hrs.) 39 0.5% 30 0.4%
More than 48 hours (≥24 hrs.) 48 0.6% 26 0.3%
The data beneath the green bar in the table above shows the total length of stay for the
small proportion of individuals whose processing did not meet the 24-hour timeline (i.e., 5% of
all new admissions using custody time as the starting point, and 3% of all new admissions using
arrival time). Of these, most were housed within 30 hours (253 of 449 people (56%) using
custody time and 174 of 286 people (61%) using arrival time).
113
o Temporarily Suspending New Admission Processing, a.k.a. Clock-Stoppage
Historically, the Department has identified circumstances in which new admission intake
processing is interrupted and has tolled its accounting of the processing time (i.e., “stopped the
clock”) until the circumstance is resolved and processing can resume. 142 The situations in which
the Department temporarily suspends its intake processing clock include when: an individual is
returned to court before the intake process is completed, an individual refuses to participate in
intake processing, an individual is transferred to a hospital or Urgi-Care (a clinic in another
facility on Rikers Island) before the intake process is complete, or an individual makes bail and
must be released from custody before the intake process is complete. Suspending intake
processing appears to have a logical element (e.g., processing cannot occur if the person is not
physically present) and may also be functional (e.g., Department or CHS staff need to know that
an individual will not be presented for a certain procedure). Although the Department tracks all
clock stoppages, the data presented above regarding the 24-hour timeline utilized a continuously
running clock, without deducting any time when processing was suspended.
The data from January to May 2023 provide some insight into this practice. First, nearly
all individuals newly admitted to the Department (89%; 7,385 of 8,258 people) were processed
through intake without the process being suspended for any reason. Further, the fact that the
process was suspended in some cases did not necessarily mean that the individual was not
processed within 24 hours. In fact, among the 873 individuals whose intake process was
suspended for some period of time, most were housed within 24 hours (53% using custody time,
68% using arrival time). Among those whose intake process was temporarily suspended and
142
See Monitor’s February 2023 Report at pgs. 17 and 19-20 and Monitor’s April 3, 2023 Report at 79 to
81.
114
whose processing lasted more than 24 hours (n=411 using custody time, n=279 using arrival
time), the largest category of suspensions occurred because the individual was required to return
to court (68% of those in intake longer than 24 hours per custody time; 73% of those in intake
longer than 24 hours per arrival time). The next two largest categories of suspensions occurred
because the individual refused to participate in the intake process (22% of those in intake longer
than 24 hours per custody time; 19% of those in intake longer than 24 hours per arrival time) and
those transferred to the hospital (13% of those in intake longer than 24 hours per custody time;
10% of those in intake longer than 24 hours per arrival time). Suspensions for Urgi-Care and bail
payment coupled with intake processing lasting more than 24 hours are rare combinations, only
occurring 11 times per custody time and six times per arrival time in a five-month period. 143
The Department would like to exclude these clock stoppages from the calculations when
determining compliance with the 24-hour requirement. The parameters and appropriateness of
this proposal requires discussion among the Parties and the Monitoring Team. The Monitoring
Team intends to develop recommendations in the coming months after it has a chance to fully
digest the most recent data and conduct some additional evaluations of the Department’s current
practices.
o NCU’s Audits to Verify Data Entry
Concurrent with the implementation of the improved New Admission Dashboard, the
Nunez Compliance Unit (“NCU”) initiated an audit strategy to corroborate time entries using
Note, these proportions do not total 100% because an individual’s intake processing may be suspended
143
more than once.
115
Genetec footage. 144 Audit results from January to June 18, 2023 are summarized for the 142
people who were newly admitted during the audits’ sampling frames. 145
 136 of 142 people (96%) arrived in intake and were processed and transferred to a
housing unit within the 24-hour timeline (confirmed via Genetec review).
 120 of 142 arrival time entries (85%) were generally accurate (i.e., within 20 minutes of
the time shown on Genetec). Among the 22 inaccuracies, nine stated a time before the
person actually arrived, and twelve stated a time after the person actually arrived. One
inaccuracy was simply reported as a “data entry error.”
 115 of 142 housing time entries (81%) were generally accurate (i.e., within 20 minutes
of the time shown on Genetec). Among the 27 inaccuracies, 14 stated a time before the
person was actually transferred to a housing unit, and 13 stated a time after the person
was actually transferred to a housing unit.
 17 of the 142 people (12%) had “clock stoppages” during the intake process. Of these,
seven were housed within 24 hours of their arrival time in intake and ten were not.
The Department has made progress in ensuring that staff are accurately entering data
regarding the person’s arrival time in intake and the time the person was transferred to a housing
unit. With respect to those cases in which errors in data entries were found, the Department
reports that three staff members received retraining, and one individual who was responsible for
errors on prior audits was removed from operating the dashboard.
144
See Monitor’s February 3 2023 Report at pgs. 20 to 22 and Monitor’s April 3, 2023 Report at pgs. 78
to 79.
145
NCU confirms the status of all individuals in the intake to determine whether they are a new admission
or if the individual may already have been in custody and is therefore in intake as an inter/intra facility
transfer. Upon confirmation of the new admissions, the audit is limited to those individuals.
116
• Intake for those Transferred Within and Between Facilities
Beginning March 27, 2023, the Department required all facilities to track individuals in
intake for the purpose of housing transfers within or between jail facilities using the Inmate
Tracking System (“ITS”) and incarcerated individuals’ “accompanying card” or “Housing
Locator Card” (which reliably establishes the individual’s identity).
o Scope of Tracking
The Department has not consistently tracked the length of stay in intake for intra/inter
facility transfers in accordance with the requirements of the Action Plan. Problems relate to both
individual staff practice and the Department’s guidance to staff about which transfers should be
entered into ITS. This spring, while on site, the Monitoring Team observed at some facilities that
some individuals’ arrival to facility intake units was not entered into ITS at all and/or that entries
were not being made contemporaneously. 146 In addition, the Monitoring Team’s inquiries on site
revealed that certain groups of individuals’ entry to/exit from intake was not being tracked in ITS
at all. Intake Staff reported that certain individuals “did not need to be entered into ITS” despite
being physically present in the intake including those who were expected to be in intake for only
a short period of time, those individuals being transferred out of state, and those individuals
being moved to another facility to attend a particular event. The Action Plan does not allow for
such exceptions.
The Department’s position on this matter has shifted multiple times in the last month. On
May 30, 2023, a senior Department executive reported to the Monitoring Team, for the first time,
that certain individuals in intake are not being tracked because their placement in intake was “not
146
See Monitor’s April 24, 2023 Report at pg. 12 and Monitor’s June 8, 2023 Report at pgs. 30 to 31.
117
a Nunez issue.” This report was surprising given the clear requirements of the Nunez Court
Orders, the Department’s policy and previous claims that such information was being tracked. 147
Subsequently, the Monitoring Team learned via the Department’s June 21, 2023 submission to
the Court that staff had been given verbal direction not to track all individuals in intake such that,
“people present [in intake] for reasons other than a reassignment of their housing location (i.e.
people who are changing their beds) are not being entered into ITS such as those going to court,
the hospital, a clinic in a different facility, or religious services in a different facility.” 148
However, in that same Court filing, the Department acknowledges that the Nunez Court Orders
“requires the reliable tracking of all individuals in all Intake areas [and the] Department intends
to fully comply with that requirement going forward.” 149
o Oversight of Intake and Efforts to Validate ITS Data
The Department has developed several initiatives to ensure individuals do not languish in
facility intake units. First, the Department reports that a Facility Operations Team in the Deputy
Commissioner of Classification’s office monitors video of intake areas 24 hours per day, 7 days
per week. Second, the Department directed each facility to submit a list of every individual in
intake six times daily (i.e., every four hours) to the Deputy Commissioner’s office along with a
147
The Second Remedial Order and the Action Plan require the Department to develop and implement a
“reliable system to track and record the amount of time any incarcerated individual is held in Intake [. . .]”
Second Remedial Order, ¶ 1(i)(c) as incorporated into § E, ¶ 3(a) of the Action Plan. Furthermore, the
approach is not aligned with the Department’s report to the Court on January 10, 2023 (dkt. 495) that
“[a]ll persons in custody entering or exiting an intake area will be manually scanned and tracked by ITS”
(at pg. 4) and in the April 17, 2023 Miller Affidavit (dkt. 519) which stated “[. . .] each facility is
responsible to record the time an individual enters and leaves intake area in the Inmate Tracking System
(“ITS”) using the bar code on the individual’s accompanying card [. . . ]” See Paragraph B 10. Finally, the
Department’s own policy requires “[a]ll PIC’s Entering / Exiting an Intake Area shall be tracked by the
ITS system.”
148
See Miller June 21, 2023 Affidavit (dkt. 533-1) at ¶ 15.
149
See Miller June 21, 2023 Affidavit (dkt. 533-1) at ¶ 17.
118
screenshot of the ITS system and a Genetec photograph of each intake pen. The Facility
Operations Team then reviews these reports to determine if any individual has remained in intake
for an extended period of time. If an individual is identified as having been in intake for more
than four hours, the Facility Operations Team contacts the facility to determine why the
individual remains in intake and takes steps to expedite the individual’s transfer. It is unknown
whether the facilities continue to provide a copy of intake logbooks daily as evidence that the
Warden, Deputy Warden, Tour Commander, and Intake Captain are conducting their required
tours of the intake area. These appear to be useful strategies to ensure intake units are properly
managed.
With respect to validating data entered into ITS, the Department reports that it can
generate data on the length of stay for all individuals transferred between and within the jails. 150
The Monitoring Team has repeatedly requested this data, for months, but the Department has not
provided it. The Monitoring Team is therefore unable to provide any information about what this
data may reveal about the length of stay and whether the Department is complying with the
relevant Action Plan requirement for the portion of people in intake who are entered into ITS (as
noted above, the Department has not been entering data on all individuals in intake units).
The Department also reports that data quality analysts’ reviews revealed that 65% to 90%
of intake data was entered into ITS correctly on any given day, although the data and methods
have not been shared with the Monitoring Team so the report cannot be validated. Further, the
Department reports that recommendations have been made to alter the ITS to: (1) add an alert for
duplicate or contradictory data entries and (2) allow a user to change information in the system if
it is added in error, and to subject all such changes to audit to prevent manipulation. The
150
See Miller June 21, 2023 Affidavit (dkt. 533-1), ¶ 12.
119
Department has not consulted with the Monitoring Team about these quality assurance efforts or
potential ITS revisions but claims the changes will be made later in summer 2023. 151
• Summary of Intake Matters
The Department’s performance with regard to intake requirements is mixed—new
admissions processing/tracking is better established than inter/intra facility transfers
processing/tracking, which has been negatively impacted by inaccurate data entry and guidance
about tracking that does not comport with the Action Plan’s requirements. New admissions
intake has addressed many of the poor conditions that led to the Second Remedial Order, few
individuals remain in intake for more than 24 hours, and quality assurance audits continue the
verify the accuracy of data at acceptable levels. On the surface, these outcomes are encouraging,
but given the Department’s overall problems in operational management, problems validating
data in other areas and several concerning incidents that have occurred in the intake unit, the
Monitoring Team is not confident about the veracity or durability of these results or that the
dangerous conditions have been fully ameliorated.
In addition, intake processing for inter/intra facility transfers still does not conform to the
Action Plan’s requirements and has been further complicated by attempts to carve out exceptions
to the tracking requirements. Even where indicators of progress reportedly exist (e.g., reports
from ITS about length of stay; audits that assess the accuracy of data entry), the Department has
not shared this information with the Monitoring Team and thus the claims cannot be verified.
Given the foregoing, the Monitoring Team recommends the Court direct the Department to file
additional reports on the Court Docket regarding the status of their continued efforts to
implement reliable Intake tracking systems for new admissions and inter/intra facility transfers
151
See Miller June 21, 2023 Affidavit (dkt. 533-1), ¶ 13.
120
on September 15, 2023 and November 15, 2023. 152 this issue is included in the Monitoring
Team’s priority recommendations for the Court to direct the Department to address as detailed in
Classification
The Deputy Commissioner of Classification, Custody Management and Facility
Operations hired by the Department in July 2022 continues to serve as the Classification
Manager and oversees the central Custody Management Unit (“CMU”). 153 The Department’s
procedures remain intact for initially determining each incarcerated individual’s custody level,
for reclassifying individuals every 60 days, and for ensuring individuals’ housing assignments
are commensurate with their custody level. 154 The Department’s initial work to address the
Action Plan’s requirements was discussed in the Monitor’s October 28, 2022 Report (see pgs.
90-91) and were updated in the Monitor’s April 3, 2023 Report (see pgs. 89-92).
The Department continues to achieve good results in the timeliness of initial
classification and reclassification. In April and May 2023, the Department reported that the one-
day count of overdue initial classifications averaged about 53 and the one-day count of overdue
60-day reclassifications was 31. This represents less than 5% of the total population and is a
generally acceptable rate of exception. The Department reported it has continued to impress upon
staff the importance of documenting misconduct via an infraction, given that the
presence/absence of infractions can change an individual’s custody level upon reclassification.
The Department also reported that audits of the extent to which paper infractions were entered
152
The Court first required production of such reports in it’s March 13, 2023 Order at pg. 29 (dkt. 511).
153
As required by the Action Plan, § E, ¶ 1 and § E, ¶ 2(a).
154
As required by Action Plan § E, ¶ 2(a) and (b).
121
into IIS (and thus could be counted during reclassification) have yielded good results.
Department and facility leaders have also noted a change in staff’s willingness to document
misconduct on an infraction now that dependable consequences are available (i.e., commissary
restrictions for infractions and/or the possibility of ESH placement). These claims have yet to be
independently verified by the Monitoring Team.
An individual’s housing unit assignment should be the product of their custody level,
SRG affiliation and service needs or program interests. The Department reported that efforts to
identify the extent to which an individual’s housing unit is commensurate with their custody
level continue (e.g., celled housing for maximum custody, and dormitory housing for minimum
custody), and that a “Mis-Housing Report” is generated for each facility every weekday, wherein
facility leaders must explain why a person is mis-housed and how they have or will rectify the
problem. In theory, this generally takes one of two forms—the individual is either moved to a
housing unit that is aligned with their custody level, or an override is applied which, once signed
by a supervisor, provides an explanation and authorization to house the person “out-of-class.”
Several years ago, the override process was in place at RNDC, but the practice reportedly
deteriorated with various personnel changes. The Monitoring Team has encouraged the
Department to restart the use of classification overrides to document legitimate reasons for
someone to be housed out-of-class (e.g., program opportunities, service needs, SRG balance or
other peer dynamics), which the Department reports it is considering. Utilizing overrides will
help both the Department and the Monitoring Team to more efficiently identify the segment of
individuals who are mis-housed due to staff error.
Finally, Department and facility leadership continues to report close collaboration
between CMU and facility security teams to maintain the balance of SRG affiliates such that no
122
one housing unit is dominated by people affiliated with the same group. 155 The process was
described in detail in the Monitor’s April 3, 2023 Report (see pgs. 92-93) and has now been
implemented in all facilities (with the exception of certain units that are service/program driven,
such as MO, PACE or ESH Level 1). The initial effort to blend affiliations within units
reportedly resulted in reactionary spikes in violence in summer 2023, but facility leaders at
RNDC and GRVC have reported that reactions among people in custody have largely stabilized.
That said, gang-related tensions continue to underlie many acts of violence.
Management of Incarcerated Individuals Following Serious Incidents of Violence
The Monitoring Team remains troubled by the ongoing level of violence in the jails and
has found that there is a compelling need to control and extinguish gratuitous and predatory acts
of serious violence committed by a relatively small number of people in custody, which results in
disturbing levels of harm to other incarcerated individuals and staff. The Action Plan requires the
Department to implement a restrictive housing program that will safely and adequately manage
those incarcerated individuals who have engaged in serious acts of violence and who therefore
pose a heightened risk to the safety of other incarcerated individuals and staff. 156 A restrictive
housing model must effectively separate those who have engaged in serious acts of violence
from potential victims, provide the necessary structure and supervision to provide safety to the
individuals housed in the unit and should provide rehabilitative services that decrease the
likelihood of subsequent violent acts. The context for and initial steps of the Department’s efforts
to develop a restrictive housing model (Enhanced Supervision Housing, or “ESH”) are discussed
in the Monitor’s April 3, 2023 Report (pgs. 95-99).
155
As required by Action Plan § E, ¶ 2(d).
156
As required by Action Plan § E, ¶ 4.
123
Once the ESH pilot at GRVC was initiated, the Department planned to move the program
to the RMSC facility, where construction was recently completed to ensure that all program
components can be properly implemented. The transfer from GRVC to RMSC was completed at
the end of June 2023. 157 The staffing complement will include some officers who were assigned
to ESH at GRVC, along with others who applied and were selected for the assignment upon
transfer to RMSC.
The Monitoring Team has had discussions with the Chair of the ESH Committee (the
Associate Commissioner of Programs and Community Partnerships) and the Department’s
consultant on this matter (Dr. James Austin) to inform the Monitoring Team’s efforts to develop a
robust monitoring strategy for the ESH program. The sources of information have been
identified, and the Department has recently started to produce an initial set of information (e.g.,
data, case files, etc.). Once reviewed, the parameters of the routine information request will be
finalized which will permit an ongoing assessment of the number of people who flow into and
out of the program (and their demographics, referral characteristics, etc.) along with
documentation of individuals’ progress and lengths of stay in each level of the program. Program
delivery data will also be addressed, along with key security measures in the ESH units.
While the Department’s engagement with the Monitoring Team on its monitoring strategy
has been fully satisfactory, the collaborative approach has not been universal. In May 2023, the
Department issued a Directive requiring ESH staff to utilize 3-point restraint (i.e., both ankles
and one wrist) when securing all Level 1 participants to the restraint desk. Exceptions could be
made on an individual basis and only with approval from the Deputy Commissioner. The
157
Construction on building a final unit at RMSC for ESH is still underway.
124
Department’s restraint policy requires securing the individual’s ankles, leaving both hands free,
but allows the use of three-point restraint on an individualized basis.
The Department’s Directive to utilize three-point restraint on all Level 1 participants in
May 2023 was promulgated following an incident in late April 2023. In that incident, one
individual was not properly restrained in the restraint desk and was able to attack and slash
another individual in a restraint desk. The fact that a policy was changed as the result of one
incident in which staff failed to follow appropriate security procedures thereby imposing more
restrictive conditions on the incarcerated population is questionable at best. Under the
Department’s logic, staff’s inability to properly secure a restraint device means that incarcerated
individuals should be placed in more restrictive devices. This clearly fails to address the
underlying problem of staff’s improper use of security equipment and is unnecessarily punitive
toward Level 1 participants. It must also be noted that the Department did not consult or advise
the Monitoring Team about this blanket change in practice, as required by the Nunez Court
Orders. The practice is also inconsistent with the Department’s restraint policy, which is subject
to approval of the Monitor. The Monitoring Team learned about the Directive through
anonymous sources and requested a copy of it. When producing it to the Monitoring Team, the
Department apparently realized its failure to consult with the Monitoring Team pursuant to the
terms of the Nunez Court Orders and reported it then rescinded the Directive in mid-June 2023.
Further, Department leadership reported to the Monitoring Team that it no longer intends to
utilize 3-point restraints. However, just a few weeks later, on July 4, 2023, at the direction of the
Commissioner, the Department reinstated the directive regarding the utilization of the 3-point
restraints. The Monitoring Team was advised after the fact that the Commissioner directed the
policy must be reinstated. The Department reported that the three-point restraint was reinstated
125
because a slashing occurred when one individual in a restraint desk was able to slash another
individual in a restraint desk. The Monitoring Team reviewed the incident and it is unclear why
this single incident would merit the imposition of a unilateral policy to utilize three-point
restraints. The incident gave rise to a number of potential security and operational lapse. First,
there are questions about whether adequate search procedures were followed given the individual
had access to a weapon while in the restraint desk. 158 Further, it is unclear whether the leg
restraints were applied appropriately and if there may have been too much “slack.” Finally, it is
unclear whether the distance between desks is sufficient. Overall, this appears to be yet another
example where the Department simply defaults to placing incarcerated individuals in more
devices rather than considering improvements in practice.
The Monitoring Team will continue assessing the operation of ESH using routine data on
the flow of people into and out of the program, evaluating program delivery and measuring
various security indicators to determine whether any changes to the ESH policy are required.
Given the need for further evaluation and refinement of the program, the Monitor is not yet in a
position to approve the current policy, as required by the Action Plan.
Conclusion
The Department’s efforts in these three areas—intake, classification, and restrictive
housing—reflect the same dynamics discussed throughout this report, meaning discrete areas of
success and progress, but also continuing failures to apply even the most basic skills to improve
staff practice along with notable failures to consult with the Monitoring Team on issues that are
clearly Nunez-related.
158
The Department reports it was unable to recover the weapon. However, review of video after the
incident revealed the individual secreting the weapon back into his body following the attack.
126
STAFF ACCOUNTABILITY –
IDENTIFYING AND ADDRESSING MISCONDUCT
In order to effectively respond to staff’s misuse of force, the Department must reliably
identify misconduct that occurs and then address the misconduct through appropriate corrective
action. This section of the report provides a summary of the Department’s efforts to properly
identify misconduct, followed by an update on the Department’s efforts to reduce the backlog of
cases awaiting accountability while also applying timely discipline for misconduct that occurred
in 2022.
Regression in Identifying Misconduct
Despite the previous improvement in the Department’s ability to properly identify
misconduct via Rapid Reviews and Investigation Division (“ID”) investigations, significant
regression occurred in both areas during the first year of the Action Plan’s implementation. The
Monitoring Team’s analysis of nearly all UOF incidents (via CODs, Rapid Reviews, and ID
Investigations 159) continues to reveal that staff misconduct is still prevalent and there is no
evidence to suggest that practices have materially improved since the inception of the Consent
Judgment. Although there were fewer cases in 2022-2023 in which the Department identified
misconduct and determined that discipline was merited, this reduction did not have a reasonable
basis and was instead due to a deterioration in the quality of investigations and the failure to
properly identify misconduct when it occurred.
159
For selected incidents, the Monitoring Team also reviews video, staff use of force and witness reports,
injury reports, and any other available documentation.
127
• Facility Assessment of UOF via Rapid Reviews
Facility leadership continues to conduct close-in-time reviews of all use of force incidents
(“Rapid Reviews” or “Use of Force Reviews”). Rapid Reviews do detect some misconduct, but
since their inception, the Monitoring Team has found that they do not do so consistently and
often fail to identify all misconduct observed via the available evidence at the time the Rapid
Review was completed. More specifically, the Rapid Reviews conducted in 2022 showed some
improvement in identifying certain misconduct compared to prior years (as noted in the
Monitor’s April 3, 2023 Report). However, a closer examination of the 2022 data and Rapid
Reviews conducted in 2023 revealed an increasing failure to identify certain issues (such as
identifying that an incident was avoidable and therefore should not have occurred). In other
words, the Department’s performance regressed. In 2022, the number of staff identified for
corrective action was the lowest it has been (n=2,860) since tracking began in 2018, even though
there were more uses of force in 2022 and no appreciable improvement to staff practice had been
detected throughout the Monitoring Team’s various reviews of incidents. Given the number of
staff identified for corrective action by Rapid Reviews in January to May 2023, the Department
is on track to identify even fewer staff for corrective action in 2023 than it did in 2022. Thus, it
appears that Rapid Review data continues to underestimate the prevalence of misconduct and
leaves some volume of the misuse of force undetected and unaddressed. A chart of the rapid
review outcomes is provided in Appendix A.
In May 2023, the Monitoring Team shared feedback with the Department in an effort to
improve the quality, reliability, and consistency of Rapid Reviews. The Department has
subsequently consulted with the Monitoring Team on efforts it has made to improve the Rapid
Reviews, including revisions to the Rapid Review Template.
128
• Investigation Division
The quality of the Investigation Division’s work product deteriorated significantly
beginning in summer 2022. The Monitoring Team found that ID was not consistently addressing
or analyzing the available evidence and the investigators’ conclusions did not appear to be
objective. 160 The Monitoring Team’s continuing assessment of investigations completed in early
2023 has revealed the same patterns previously reported, reinforcing the Monitoring Team’s
finding that investigators’ practices had regressed and substantively changed for the worse.
The decline in quality did not appear to be the product of less skilled investigators or
supervisors, nor did the deterioration appear to be related to the type of investigation (e.g., Intake
Investigations versus Full ID Investigations). It appeared to be the result of poor leadership and a
possible shift in direction to alter the approach on how to conduct an investigation. The
Monitoring Team’s concerns regarding the decline in quality were shared with the Department
and were only exacerbated by the Commissioner’s and Department’s protracted and lackluster
response to the Monitoring Team’s findings, which failed to propose reasonable solutions to
address the issues identified by the Monitoring Team. Ultimately, concrete action (i.e., the
resignation of the DC of Investigations and appointment of new leadership, and changed
practices) was only taken on the eve of the filing of the Monitor’s April 3, 2023 Report. An
update on the status of ID investigations is provided in Appendix A.
This regression during the pendency of the Action Plan offset the progress the
Department had previously made toward compliance to “conduct thorough, timely, and objective
investigations of all Use of Force Incidents to determine whether Staff engaged in the excessive
These findings were extensively reported in the Monitor’s April 3, 2023 Report at pgs. 100 to 102 and
160
pgs. 155 to 171 and in the Monitor’s April 24, 2023 Report at pgs. 1 to 9.
129
or unnecessary Use of Force or otherwise failed to comply with the New Use of Force
Directive,” as required pursuant to § VII. ¶ 1 of the Consent Judgment. In 2020, during the 10th
Monitoring Period, the Department had moved out of Non-Compliance with this provision and
maintained Partial Compliance through the 14th Monitoring Period (January to June 2023). 161 In
the 15th Monitoring Period (July to December 2022), as result of the significant regression in the
quality of investigations, the Department was returned to Non-Compliance with this requirement
thus erasing its prior progress.
In April 2023, a new leadership team was installed in the Investigation Division, and the
division was split so that ID now focuses exclusively on use of force investigations, and a
separate unit conducts investigations into all other types of misconduct. Initiatives are also
underway to restore the quality of the investigations. One foundational component that is
necessary for this remediation work is that ID must have sufficient staff to do the work. The staff
assigned to work on UOF investigations in ID has decreased 50% from January 2020 (when 142
investigators and supervisors were assigned to use of force investigations) compared with a total
of 71 investigators and supervisors in June 2023.
While additional staff were assigned between April and June 2023, given attrition of staff
within ID, there was a net loss of 3 individuals (74 to 71). The Department reports that 15
additional staff are slated to be assigned to ID in early July and additional recruitment efforts are
underway. An assessment of the ID’s staffing needs found that the Division at least 21
161
A compliance rating for this provision was awarded in the 13th Monitoring Period because the
Monitoring Team did not assess compliance with any provisions of the Consent Judgment or Remedial
Orders for the period between July 1, 2021 and December 31, 2021 as the Court suspended the
Monitoring Team’s compliance assessment during the Thirteenth Monitoring Period because the
conditions in the jails during that time were detailed to the Court in seven status reports (filed between
August and December 2021), a Remedial Order Report (filed on December 22, 2022) as well as in the
Special Report filed on March 16, 2022 (dkt. 441). The basis for the suspension of compliance ratings
was also outlined in pgs. 73 to 74 of the March 16, 2022 Special Report (dkt. 438).
130
supervisors and at least 85 investigators are necessary, which has not been achieved.
Accordingly, even greater vigilance is needed as the current staffing numbers are insufficient to
manage the workload. Given the need for adequate staffing, this issue is included in the
Monitoring Team’s priority recommendations for the Court to direct the Department to address
as detailed in the Conclusion of this report. 162
Overall, the regression within ID during the pendency of the Action Plan is disturbing
and consequently resulted in a reduction in the level of the Department’s imposition of
meaningful and timely accountability for misconduct that occurred during pendency of the
Action Plan.
Addressing the Misconduct & Case Processing
The Department’s ability to impose appropriate and meaningful accountability has been a
key focus since the inception of the Consent Judgment and has also been subject to multiple
Remedial Orders, including the Action Plan. The overarching goal is for the Department to have
an appropriate and adequate continuum of responses to staff misconduct (e.g., immediate action,
command discipline and formal discipline) and to improve the Department’s process for
imposing each type of discipline. With respect to formal discipline, over the last few years, the
Department exerted significant effort to ensure a sufficient number of staff were assigned to the
various tasks and to ensure that OATH, which is responsible for adjudicating matters that cannot
be resolved internally, was aligned with the requirements of the Nunez Court Orders and was
able to support timely case processing.
162
This proposal is consistent with the requirement for Trials Staffing in the Action Plan § F, ¶ 1(a).
131
During the first year of the Action Plan’s implementation, the Department has worked to
create a more functional continuum of accountability and to significantly reduce the backlog of
use of force disciplinary cases and medical incompetence cases. This makes the problems in
identifying misconduct, as described above, that much more unfortunate, as overall
accountability for misconduct has demonstrably suffered during the Action Plan’s first year of
implementation. The status of various components of the formal discipline process is discussed
below.
• Immediate Action: 163 The Department’s ability to take immediate action is a critical tool
to rapidly address particularly egregious misconduct, especially in this agency where
accountability can be so protracted. The use of immediate action, particularly suspension,
decreased during the first six months after the Action Plan went into effect. The change
appeared to be the result of the former Deputy Commissioner of ID’s practice of utilizing
formal discipline instead of immediate suspension. This is obviously problematic given
the protracted formal disciplinary process. Following feedback from the Monitoring
Team, in the beginning of 2023, ID began to impose suspensions in cases where
immediate action was merited. As a result of these changes, nearly 60 individuals were
suspended for use of force related misconduct between January and May 2023. A chart of
suspensions is included in Appendix A. It must be noted that the Monitoring Team
continues to identify additional cases that also merit suspension, but suspension was not
imposed and to make recommendations to address those cases pursuant to the First
Remedial Order, § C, ¶ 2. 164
163
As required by the Action Plan, § F, ¶¶ 8 and 9.
164
The Monitoring Team is judicious in the recommendations that it makes to the Department with regard
to immediate action cases and only identifies those cases where immediate action should be considered,
and the incident is not yet stale for immediate action to be taken. Given the Monitoring Team’s role, it is
not often in a position to have contemporaneous information, and so there are inherent limitations to the
scope of misconduct the Monitoring Team can identify and recommend for consideration of immediate
action. For instance, if the Monitoring Team identifies an incident that warranted immediate corrective
action (and none was taken), but the incident occurred many months prior, an immediate action
recommendation is not shared because the appropriate window of opportunity for immediate action has
132
• Command Discipline: 165 The Department implemented a revised Command Discipline

(“CD”) Policy 166 to expand the use of the tool, to provide a much-needed path toward
increasing close-in-time discipline for lower-level use of force violations, and to support
the facilities’ ability to hold staff accountable for misconduct. A CD is an appropriate
way to address a variety of low-level poor staff practices, and if properly applied, the
Monitoring Team supports their use. The CD process articulated in policy is reasonable,
but in practice, the Monitoring Team has long found that CDs are often not properly
managed or adjudicated. 167 Dismissals due to procedural violations are common (25%
from July to December 2022) 168 and CDs too often default to the least punitive sanction
available rather than one that is proportional to the severity of the misconduct. A chart of
the status of Command Discipline is included in Appendix A of this report. Referral
procedures for MOCs/formal discipline are not properly monitored, allowing some staff
who qualify for formal discipline to escape a more significant penalty. The Department
has long struggled to reliably and consistently adjudicate CDs, and additional oversight
and quality assurance is needed to ensure that CDs are adjudicated as required by policy.
The Monitoring Team has long recommended improvements to the process and, in
conjunction with the revised policy, made written recommendations in August 2022. 169
passed. If the appropriate window of opportunity for immediate action has passed, the Monitoring Team
still recommends that the Investigation Division revisit the investigation for the case to address the
specific concerns raised by the Monitoring Team so that staff recognize these issues and misconduct
when reviewing similar incidents in the future. The Monitoring Team’s immediate action
recommendations are therefore only a subset of cases where immediate action was likely warranted but
not taken. The Monitoring Team’s overall goal is to avoid lost opportunities for immediate action, but this
approach is not failsafe.
165
As required by the Action Plan, § F, ¶ 3.
Detailed discussions regarding Command Disciplines can be found in the Monitor’s April 3, 2023
166
Report at pgs. 180 to 183 and the Monitor’s April 24, 2023 Report at pgs. 20 to 22.
See Monitor’s 7th Report, pgs. 40-44; Monitor’s 8th Report, pgs. 55-58 and pg. 65; Monitor’s 9th
167
Report, pg. 67-72; Monitor’s 10th Report, pgs. 60-65; Monitor’s 11th Report, pgs. 81-86; Monitor’s 12th
Report, pgs. 39-41; Monitor’s March 16, 2022 Special Report, pg. 43; Monitor’s October 28, 2022
Report, pg. 98 and pgs. 147-149; Monitor’s April 3, 2023 Report, pg. 106 and 108 and pgs. 180-183;
Monitor’s April 24, 2023 Status Report, pgs. 20-22.
168
The number of cases dismissed for CDs issued in 2023 is not yet known given 21% of cases for
incidents that occurred in January-March 2023 are still pending adjudication.
169
A summary of the recommendations can be found in the Monitor’s April 3, 2023 Report at pg. 108.
133
Unfortunately, the Department has made no progress in implementing the

recommendations, despite repeated follow-up from the Monitoring Team and inclusion of
these recommendations in the April 2023 Recommendations. The Department has
repeatedly reported that it is working to develop appropriate oversight mechanisms, most
recently advising that a proposal would be shared by early June 2023. In late June, the
Monitoring Team was advised that the Department has reassigned responsibility of
addressing this recommendation and that it intended to make additional revisions to the
Command Discipline policy and the process and will consult with the Monitoring Team
on any changes. In the meantime, the development and implementation of the necessary
safeguards for this process are not in place almost a year after the Monitoring Team’s
latest feedback (and years after the issue was first raised). As a result of the Department’s
failure to adequately manage this issue, the Monitoring Team has recommended that the
Court Order require that specific safe guards are put in place, by a specific date and
subject to approval of the Monitor as discussed in more detail in the Conclusion section
of this report.
• Expedited Case Closures: 170 Since the inception of the Action Plan, the Department
expedited the processing of over 40 cases of egregious conduct and resolved the majority
with close-in-time discipline, which has generally been found to be reasonable. 171 The
ability to address in a timely manner these more egregious cases, while few in number,
remains a critical tool to ensure meaningful accountability.
• Formal Disciplinary Process & Staffing for Trials Division: 172 Case processing within
the Trials Division has improved with the reduction in the backlog (discussed below),
streamlined internal processes, increased capacity and efficiencies at OATH, and
enhanced staffing levels. However, the Department is still not timely addressing
disciplinary matters as it must in order to achieve Substantial Compliance with the
Consent Judgment provisions (e.g., it is not uncommon for a year to elapse from the time
misconduct occurred to the imposition of formal discipline). To address this problem, the
170
171
See Monitor’s April 3, 2023 Report (dkt. 517) at pgs. 196 to 198.
172
As required by the Action Plan, § F, ¶¶ 1 and 6.
134
Trials Division recruited and retained additional staff as required by the Action Plan. The
Department has made progress on increasing the number of staff assigned to the Trials
Division. However, the Trials Division leadership continues to report that recruiting for
attorneys is challenging, especially because the salary offered is not competitive. While
the City approved a salary increase in July 2022, the Trials Division reports the salary
continues to inhibit its ability to recruit qualified candidates. It is for this reason that the
City and Department must remain vigilant to ensure that the Trials Division maintains
adequate staffing levels to meet the demands of the workload and necessary staff must be
brought on board as quickly as possible. As update overall recruiting efforts is provided
in the Overarching Initiatives Related to Reform section of the report.
• OATH Practices: 173 The increased availability of OATH pre-trial conferences has
facilitated more timely resolution of matters when the ALJ facilitates a settlement (or
schedules a trial) in cases that cannot be resolved between the Department and the staff
member directly. The number of use of force cases ultimately requiring a trial remains
very low, and thus the Monitoring Team continues to encourage OATH to schedule trials
to occur as close in time to the pre-trial conference as possible to facilitate the timely
resolution of the matter. Trials at OATH are occurring closer in time to the pre-trial
conference and are conducted more efficiently than they have been in the past. Compared
to previous practice, the Report and Recommendations from the ALJs are completed
closer in time to the trial conducted and reflect an improved assessment and analysis of
the Department’s disciplinary guidelines than in the past. OATH recommended
termination for 12 staff for UOF-related misconduct in 2022, double the number
recommended for this reason in 2021. This is particularly noteworthy as OATH did not
recommend termination for any staff for UOF related misconduct for the first five years
after the Consent Judgment went into effect, despite circumstances that merited such a
recommendation.
• Case Closures: Overall, between January 2022 and May 2023, the Department closed
2,441 cases involving UOF-related discipline. More cases were closed in 2022 (n=2,163)
than any other year since monitoring began, and the number of cases closed in 2022 is
173
135
nearly the same as the number of cases closed in the previous five years combined
(n=2,225 cases were closed between 2017 to 2021). The Monitoring Team has not
identified an overall negative impact on the appropriateness of the dispositions given the
large number of closures. The Monitoring Team has recommended that the use of lower-
level sanctions (e.g., 10 days or less) and cases in which the disposition only remains on
the staff member’s record for one year must be reduced and has recommended the
Department impose prudent limitations on the use of this strategy going forward. The
Monitoring Team has been consulting with the Deputy Commissioner of the Trials
Division on revised parameters for the use of these sanctions and the Department is
currently on track to meet the July 30, 2023 deadline to limit the circumstances in which
low-level sanctions and expungement may be utilized.
• Formal Disciplinary Backlog: 174 The Department has made great strides in reducing the
backlog of use of force related disciplinary cases. 175 The Department has essentially
eliminated the backlog of use of force related disciplinary cases for incidents that
occurred prior to December 31, 2020 176 and is now working to close out the backlog of
cases that occurred between January 1, 2021 and June 30, 2022 by August 15, 2023. 177
As the Monitoring Team has cautioned in every report to date, eliminating the backlog
(or portions of it) does not mean that all cases are now closed timely nor does it mean
that discipline is applied in all cases that require it, as discussed in more detail below.
• Formal Discipline for Incidents in 2022: 178 The Department has brought only 433 cases
for formal discipline related to 317 of the 7,005 use of force incidents that occurred in
174
175
Reducing the backlog of disciplinary case for UOF-related misconduct occurred over three phases: (1)
closure of 400 priority use of force cases by April 30, 2022 pursuant to the Third Remedial Order (See
Monitor’s June 30, 2022 Report at pg. 31); (2) closure of cases occurring on December 31, 2020, and
earlier, (the “2020 Backlog”) by December 31, 2022; and (3) closure of cases that occurred between
January 1, 2021 and June 30, 2022 by August 15, 2023.
176
As of May 31, 2023, about 50 cases related to this time period remain pending. The Department
reports that the majority of cases that remain pending involve staff members on excused leave (e.g.,
military or maternity leave). In other cases, the Department is awaiting a decision from OATH.
177
The Monitoring Team originally recommended a deadline of July 15, 2023, but, following discussions
with the Department, the recommended deadline was revised to August 15, 2023. The Department has
reported it intends to meet this deadline. See City’s April 25, 2023 Status Letter (dkt. 523) at pg. 4.
178
136
2022, or about 5%. This is the lowest number of charges brought since the inception of
the Consent Judgment in 2016 when 471 cases were brought among the 4,652 total uses
of force, or about 10%. In 2019, when the Department had a similar number of uses of
force as 2022 (n=7,169), it brought 1,027 cases for formal discipline (about 14% and
more than double the number of cases brought in 2022). The decline in the number of
cases brought for formal discipline is a signal of continuing dysfunction and that
accountability for use of force related misconduct has declined despite the Monitoring
Team’s findings that use of force related misconduct did not itself decline in 2022. A
chart of the status of disciplinary cases by date of incident is included in Appendix A.
• Supervisory Accountability in 2022: During the pendency of the Action Plan, the
Department reported the following data on accountability imposed against supervisors for
use of force related misconduct, inefficient performance of duties or inadequate
supervision:
Accountability for Facility Leadership and Supervisors, June 2022 to June 2023
Warden Deputy Warden Assistant Deputy Warden
1 case 31 cases
Formal Discipline 0
(involving 1 DW) (involving 18 ADWs)
Command Discipline 0 0 33
5003 Counseling 0 0 15
Corrective Interview 0 1 17
Given the volume and pervasiveness of issues regarding the use of force,
inefficient performance of duties and inadequate supervision identified by the Monitoring
Team during its routine review of incidents, the fact that so few disciplinary actions have
been taken against facility leaders and supervisors is troubling. Not only do facility
leaders and supervisors serve as role models for expected practice, but they also have an
affirmative duty to supervise and correct poor staff practice when it occurs in their
presence. The Monitoring Team frequently identifies situations where leaders and
supervisors have not upheld these responsibilities and yet no corrective action has been
taken. Two such examples are described below.
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In a particularly concerning event, multiple staff (including a DW, 179 Captain and
three officers) did not follow sound practice or required procedures when responding to
an individual engaging in self-harm. This incident is reflective of the Monitoring Team’s
longstanding concerns regarding self-harm as it demonstrates DOC staff’s endemic
dismissal and disregard for individuals who are physically hurting themselves without
harming other staff and individuals present. The conclusion of ID’s investigation was
consistent with the available evidence and its conclusion recommending charges was
reasonable and consistent with DOC policy and sound correctional practice. Despite the
fact that charges were brought against these staff members, the Commissioner absolved
those involved from discipline and dismissed the charges based upon “further review of
pertinent information documents”. Based on a review of the available evidence, the
Monitoring Team does not find the reversal to be reasonable, and the fact that one of the
individuals was later promoted to a high-ranking position is equally troubling. The fact of
their misconduct and the lack of accountability for leaders and supervisors does not bode
well for the prospect of reform.
In a second case, in April 2021, a Captain was indicted for criminally negligent
homicide (a felony) in the death of a detainee who hanged himself. The Captain ordered
officers not to perform potentially lifesaving measures and left him hanging in a locked
cell for about 15 minutes. The Captain was convicted of negligent homicide and
sentenced in April 2023. 180 At the time of the Captain’s arrest, in April 2021, the Captain
was suspended for a little over 30 days — 28 days of those suspension days were without
pay. The Captain was then placed on modified duty (and paid) for the duration of the
case. In Spring 2022, the Department reports the Captains’ union objected to the 2021
suspension. In response, on August 22, 2022 the Commissioner rescinded the suspension
and the Captain was provided back pay for the time of the suspension. It is unclear why
this decision was made. DOC’s suspension policy does not place any limitations on the
The Deputy Warden has subsequently been promoted, most recently to serve as an Assistant
179
Commissioner of Operations.
180
See, D.A. Bragg Announces Jail Sentence of Corrections Captain for Negligent Homicide,
https://manhattanda.org/d-a-bragg-announces-jail-sentence-of-corrections-captain-for-negligent-
homicide/.
138
length of time a Captain may be suspended (as long as suspensions occur in 7-day
increments). Further, pursuant to NY Administrative Code § 9-112 (Suspension of
members of the uniformed force), permits the Department to suspend a uniform staff
member without pay for the duration of time that criminal charges are pending. This case
is incredibly troubling given both the egregious nature of the misconduct and the
Department’s failure to reasonably utilize available accountability measures (and
reversing course on the limited accountability imposed). This calls into question the
Department’s commitment to imposing meaningful accountability or in certain cases, any
accountability at all.
• Pending Cases: As of the end of May 2023, the number of cases pending formal
discipline has remained low (although this may be in part due to the decreased number of
referrals from ID) but is greater than in December 2022 (440 versus 409). The number of
pending cases will, of course, often ebb and flow. Once the required improvements to the
investigation process have been implemented, the number of cases referred for discipline
is expected to increase, but the Trials Division should be in a position to manage the
influx given the reduction in the backlog and its improved staffing level.
• Civil Service Commission’s Ability to Overturn Commissioner’s Imposition of
Discipline: A disciplinary decision made by the Commissioner is appealable to the Civil
Service Commission which is authorized to make the final disciplinary decision. 181 While
in the majority of appeals, the Commissioner’s decision is affirmed, the Civil Service
Commission recently reversed the Commissioner’s decision to terminate a staff member
who utilized a deadly chokehold that was found to be both unnecessary and excessive. 182
The Civil Service Commission found, following a motion for reconsideration, that the
staff member’s “record overall is truly exceptional, such that it warrants a penalty short
of termination.” 183 That staff member must now be reinstated. The Civil Service
181
The Civil Service Commission opinion notes “[t]his decision constitutes the final decision of the City
of New York.”
182
See, also, Monitor’s April 3, 2023 Report at 105 to 106 and 192 to 193.
183
The Civil Service Commission agreed that the Respondent engaged in unnecessary and excessive force
and falsified his involvement in the case, so there is no dispute about the facts. Further, in its decision on
the Motion for Reconsideration, the Civil Service Commission clarified that the lack of injury to the
individuals in the incident is “irrelevant to evaluation” of the penalty.
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Commission’s original determination and subsequent decision on the Motion for

Reconsideration raise a number of concerning issues. As an initial matter, the
Commissioner’s efforts to take the steps required by the Consent Judgment have been
undermined by another agency. 184 Further, the question raised by the Civil Service
Commission as to whether or not the disciplinary guidelines were in place when the
incident occurred (the incident occurred on September 11, 2017 prior to the
implementation of the disciplinary guidelines on October 17, 2017) does not absolve the
City and Department from implementing a zero-tolerance policy for unnecessary and
excessive force, and the Use of Force Policy was in effect at the time this misconduct
occurred. See Consent Judgment, § IV. (Use of Force Policy), ¶ 3(a). Finally, in an
egregious case of use of force misconduct such as this one, the fact that the staff member
may not have engaged in misconduct previously should not preclude termination. That is
illogical. In addition to this individual’s return to duty notwithstanding the person’s
questionable fitness for the job, the reversal of discipline (and particularly, for such
dubious and illogical reasons) runs counter to the very goals of the Consent Judgment.
The relevant decisions are attached as Appendix G to this report.
Conclusion
During the Action Plan’s first year of implementation, the Department lost significant
ground in its ability to detect misconduct at both the facility and agency level. This has obviously
undercut the Department’s ability to ensure appropriate and meaningful accountability, and
further perpetuates the culture of impunity for the misuse of force that gave rise to the Consent
Judgement. This further undermines the significant progress the Department has made in
184
Counsel for the City of New York has reported to the Monitoring Team that the Civil Service
Commission is not a City agency despite the fact that the opinion notes it is the “final decision of the City
of New York.” The City reported that “the CSC is a legally distinct and independent entity. New York v.
City Civil Serv. Com., 60 N.Y.2d 436, 470 N.Y.S.2d 113, 458 N.E.2d 354 (1983). CSC decisions
pursuant to CSL 76 are final and are not subject to judicial review. The only way to reverse them is to
prove that they are “purely arbitrary,” and to show that the decision “contravene statutes or constitutional
provisions, or countenance their contravention” N.Y.C. Dep’t of Envtl. Prot. v. N.Y.C. Civil Serv.
Comm’n, 78 N.Y.2d 318, 323, 574 N.Y.S.2d 664, 666, 579 N.E.2d 1385, 1387 (1991).”
140
addressing the backlog of disciplinary cases and ensuring that a large number of cases can be
processed. The Department’s failure to detect misconduct when it occurs thus translates to the
failure to hold staff accountable when necessary. The regression in identifying misconduct
resulted in 2022 having the lowest number of charges for use of force related misconduct since
the Consent Judgment came into effect and the lack of adequate controls on Command
Disciplines has resulted in an unreasonable number of cases being dismissed. This has a direct
and negative impact on the Department’s ability to impose appropriate and meaningful discipline
as required by § VIII. ¶ 1 of the Consent Judgment. While the Department’s progress on
processing its large volume of cases, and reducing the backlog of disciplinary cases, can
certainly be leveraged going forward, the regression in accountability for incidents that have
occurred since 2022 is concerning and calls into question the City’s and Department’s level of
commitment and ability to achieve compliance with the requirements regarding investigation and
accountability of the Nunez Court Orders.
141
DOC’S MANAGEMENT STRUCTURE

MANAGEMENT OF NUNEZ COURT ORDERS
The Monitoring Team has consistently reported on the Department’s various
nonfunctional systems and ineffective practices and procedures which form a deeply entrenched
culture of dysfunction that has persisted across decades and many administrations. These
deficiencies have been normalized and embedded in many facets of the Department’s operation
and have served to impede reform efforts. The issues stymying reform are complex, with a
number of “problem centers” which are inextricably intertwined and layered. Finding effective
and sustainable solutions to such complex problems necessitates peeling back the layers of
dysfunction to uncover the core problems and then developing multilateral and multifaceted
approaches to correct them. The Department, thus far, has not been able to do so. It has therefore
been impossible for the Department to improve the practices targeted by the Consent Judgment
without first addressing certain foundational issues. Similar dysfunction characterizes the
Department’s capacity to manage the reform and its effort to demonstrate its progress toward the
requirements of the Nunez Court Orders. This section describes the complex and often circular
cycle of management dysfunction that has prevented the Department from advancing along the
trajectory of reform.
DOC’s Dysfunctional Management Structure
The City and Department have attempted to put the jails on a different course for almost
eight years under the Nunez Court Orders. While progress has been made in some areas, stalled
initiatives and regression in other areas have neutralized any real sustained momentum toward
reform. The Monitoring Team has observed this cycle for the past eight years across four
Commissioners and two City administrations.
142
From the outset, the Department’s efforts to reform its dysfunctional practices have
moved at a glacial pace. Given the current state of affairs, the Court advised that the
Department’s work “requires a pace faster than any that [the City and DOC has] managed to
achieve so far.” See April 27, 2023 Status Conference Transcript at pg. 68:17-18. Unfortunately,
as discussed in this report, the pace of reform has not accelerated and in fact, has slowed in some
areas, and worse, regressed in others. More broadly, the Monitoring Team does not believe there
is sufficient evidence to suggest that the pace of reform will accelerate within the confines of the
current structures. The management dynamics inhibiting reform are described below.
State of Crisis: The Department operates in a near-constant state of crisis such that the
concentrated attention and effort needed to reform core practices is constantly being diverted to
other issues. Rather than focusing the necessary attention on building strong foundational
structures, the Department continues to veer from one crisis to another. Over the last eight years,
the Monitoring Team has observed this cycle repeatedly. All correctional systems are confronted
with frequent crises, but in the Monitoring Team’s experience, functional systems that are
committed to reform do not permit the crises to continually derail their reform efforts. The
Department has permitted the existence of perpetual crises to divert its focus from the priorities
of the Nunez Court Orders or used the crises to defend its lack of progress and significant
regression in core areas of the Nunez reform effort. 185 This is particularly true given that this
system has more resources available than almost any other confinement operation with which the
Monitoring Team has experience.
185
For example, the Commissioner reported to the Court that the delay in addressing the regression with
the quality of ID’s work that occurred during his tenure was because “the department was undertaking a
number of just complex challenges” and the “[Court must] understand all of the macro issues that [he is]
trying to address throughout the whole department.” See April 27, 2023 Status Conference Transcript at
23:15-16, 23:25 and 24:1-2.
143
Lack of Continuity: If sustainable reform is the goal, the various initiatives to ameliorate
dangerous conditions and improve core practices must endure beyond a single administration. Of
course, as new agency leaders are appointed, they must have time to adapt and must have some
latitude to initiate their own vision. Further, some amount of trial and error is necessary to
develop durable solutions to complex and entrenched problems. Having said that, the
Department’s work over the past year has often repeated the same cycle the Monitoring Team
has seen in the past—initiatives are created, changed in some material way, and then must be
restarted. Three such examples of this cycle that have occurred over the past year include the
need to improve use of force investigations and corresponding accountability (again), to
reconfigure ESU’s management and staffing (again), and to rebuild its internal structure for
managing the Nunez Court Orders (again). At various times, the Department made progress on
each of these issues, but either new actors took over and altered the course of the work, or
various problems emerged (many of them preventable, few insurmountable) causing the
Department to restart the project yet again. Perpetually restarting the clock is antithetical to
advancing reform and accelerating progress.
Furthermore, at times, new elements related to issues that must be remediated emerged
that needed to be addressed but were not directly related to the core problem that needed to be
targeted. For instance, with respect to Staffing, the Monitor’s May 11, 2021 Report found the
“Department struggles to manage its large number of Staff productively, to deploy them
effectively, to supervise them responsibly, and to elevate the base level of skill of its Staff. [The
Monitoring Team found] overall Staff assignment is not aligned with the values that undergird
the reform effort, such as de-escalation and reliable service provision on the housing units.” At
pgs. 11 and 13. Two years later, these findings are equally applicable to the current state of
144
affairs. However, during the two years since these findings were made, the staffing crisis
occurred, and the Department’s focus was diverted to addressing rampant absenteeism. The
essence of the recommendation to better deploy, supervise and equip staff for the job lost its
priority status and garnered little attention while the Department developed a strategy to return
staff to work. One year into the Action Plan’s implementation, staff absentee rates have gone
down, and certain progress related to improving staff deployment can be identified (e.g.,
modernizing staff scheduling, improving oversight of sick leave benefits) but other requirements
to improve staff deployment have not yet begun, such as reducing the use of awarded posts and
optimizing the staff schedules. The Department is also unable to develop any reports regarding
the deployment of staff so that patterns and trends can be identified, which is a foundational step
in conducting an analysis and revisiting the strategy for staff deployment.
Lack of Elementary Skills: In this Department, steps to improve practice are often
undercut by staffs’ lack of elementary skills and lack of understanding of basic correctional
practices. This leaves the Department at an impasse—in a place where many of the requirements
of the Consent Judgment are simply unattainable, and even the more basic requirements of the
Nunez Court Orders are inaccessible because the basic foundations needed to improve practice
either do not exist or are too weak to incorporate and sustain the necessary changes. An example
of this is the Department’s effort to address the requirements of the Second Remedial Order and
the Action Plan related to Intake. While the Department has made progress in managing intake, it
still appears unable to ensure that accurate, reliable data is maintained, to effectively track the
process (particularly inter/intra facility transfers, and to identify and expeditiously rectify
problems that emerge. Additional work is needed to ensure that data related to intake
arrival/departure times are properly tracked in ITS to ensure individuals do not languish in
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intake. This initiative has taken far longer than expected due, at least in part, to the lack of basic
data entry skills and poor supervision at the facility level compounded with other management
issues. 186
Inability to Identify and Address Problems Proactively: Over the past eight years, the
Monitoring Team has had to identify and report on obviously deficient practices in order for the
Department to recognize the problems and determine how to fix them. It is a core responsibility
of the Monitoring Team’s work to provide an objective and neutral assessment of the current
state of affairs. The hope of any reform effort is that this function will become an internal
capacity to identify and solve problems; however, to date, the Department has not demonstrated
an ability to perform this function on its own. The most glaring example of this over the past
year is the Department’s inability to identify its significant regression in conducting use of force
investigations. Whether it can ultimately address and sustain progress in restoring the
Investigation Division’s (“ID”) work remains to be seen.
Despite the alarming regression in ID’s functioning and the significant reduction in
accountability for misconduct that occurred in 2022, the Department’s initial response was
lackluster, insufficiently robust and did not appear to appreciate the depth of the problems, 187 and
how it significantly reduced the Department’s ability to hold Staff accountable for misconduct
that occurred in 2022. Since the inception of the Consent Judgment, almost eight years ago, the
lowest number of charges for use of force related misconduct were brought in 2022, despite an
increase in the number of use of force incidents over this time and there has been no change in
186
The Monitoring Team’s site work in April, May, and June 2023 identified certain lapses in tracking
individuals in intake, as discussed in the Management of Incarcerated Individuals section of this report.
187
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practice to suggest that a reduction in accountability is because there is less misconduct; in fact
the opposite is true. This fact is often obfuscated by the Commissioner and Department’s
repeated reports about the significant progress in eliminating the disciplinary backlog (which is
laudable), but ignores the fact that the Department’s ability to impose timely and meaningful
discipline for use of force related misconduct occurring now has been severely compromised.
Unlike many of the issues the Commissioner faced when he took office, this particular problem
was the result of actions taken by this Commissioner and a Deputy Commissioner that he
appointed. It is one example where progress toward compliance markedly deteriorated during his
tenure.
Department Action Taken Only Following Public Reporting: During spring 2023, the
Department elected to take action on at least three notable issues only right before or right after
the filing even though the Monitoring Team briefed the Department well in advance and sought
to engage in problem-solving efforts in real-time. 188 First, the Department addressed the
Monitoring Team’s concerns regarding ID’s leadership and performance just one day before the
Monitor’s April 3, 2023 Report was filed, despite the Monitoring Team having initially raised
the issue in December 2022. Second, the Department only started addressing the Monitoring
Team’s concerns regarding ESU’s management and staffing three weeks after the Monitor’s
April 3, 2023 Report was filed, even though these issues had been raised repeatedly before and
during the pendency of the Action Plan (beginning in June 2022). Finally, the Department
appointed a Nunez Manager on June 9, 2023, just days before the June 13, 2023 Emergency
Court Conference, despite the fact that the Monitoring Team had been recommending that the
Department fill this position for months.
188
147
Candor and Transparency Issues with the Monitoring Team: In response to the
Monitoring Team’s concerns about the quality of communication with the Department, the
Department frequently cites the fact that it produces a large volume of information to and is in
frequent contact with the Monitoring Team. Both assertions are true. The Department has
provided a large volume of documents to the Monitoring Team since the inception of the
Consent Judgment and under every Commissioner. Given the original size and increased scope
of the Nunez Court Orders, the fact that the Monitoring Team must make a significant number of
requests for information in order to fulfill its responsibilities is not surprising. The Monitoring
Team is very cognizant of the work involved and continues to make efforts to obtain information
as efficiently as possible to minimize the burden on the Department. 189 The Department’s
implication that the production of a significant amount of information means there is no issue
with information-sharing ignores the Monitoring Team’s concerns about the quality and
timeliness of information provided. The Monitor’s recent reports are replete with examples of
these problems, and reveal a concerning trend in which consultation does not occur, information
is not provided and when information is provided to the Monitoring Team it is vague, inaccurate,
or incomplete based on facts known to the Department (or that reasonably should have been
known) at the time the report was made. 190 This is particularly concerning given that, in some
cases, the information came from the Commissioner and other high-ranking officials. The
Monitoring Team’s subsequent inquiries revealed (1) premature conclusions about Departmental
189
For instance, the number of requests by the Monitoring Team has actually decreased over the last three
years as the Monitoring Team has worked to further leverage certain routine reports and other information
produced.
190
See Monitor’s December 6, 2021 Report (Monitor’s Twelfth Report) noted at pg. 121-122, Monitor’s
March 16, 2022 Report at pgs. 24 to 29, Monitor’s April 3, 2023 Report at pgs. 113 to 115, Monitor’s
May 26, 2023 Report, Monitor’s June 8 2023 Report at pgs. 15 to 38, and Monitor’s June 12, 2023 letter
(dkt. 544) at pgs. 1 to 2.
148
wrongdoing, (2) the perpetuation of inaccurate information, and (3) multiple failures to provide
timely, accurate and complete information. The significant regression in the accuracy,
thoughtfulness and responsiveness of the information provided requires significant follow-up
from the Monitoring Team. Furthermore, the Department now takes much longer to produce
information than it has in the past. Finally, the Department does not generally provide
information proactively, which means the Monitoring Team must constantly request status
updates to ensure the Monitoring Team is aware of actions the Department is taking to comply
with the Nunez Court Orders. The Department simply fails to appreciate and address the
significant regression in the quality, timeliness, and proactive sharing of information.
Lack of Context when Describing the Current State of Affairs: The City and
Department have frequently reported that they agree with the Monitoring Team’s findings, 191 but
recent public reporting and statements from the City and Department raise serious questions as to
whether they truly embrace the need for transparency, accountability, and oversight. For
instance, the Commissioner appeared to suggest that the Monitoring Team should not file the
May 26, 2023 Special Report 192 because it will cause “great harm [to the Department] at a time
191
See for example, the City’s April 25, 2023 Status Letter to the Court noting “[t]he Defendants
appreciate the Monitor’s exhaustive and analytical status report submitted on April 3, 2023 (“Report”),
and generally agree with its assessments.” at pg. 1 (dkt. 523); on March 1, 2023, the Commissioner stated
“[t]he Monitor and his Deputy have been overseeing the Department for a number of years and they have
a keen sense of the challenges that exist in the Department.” MANHATTAN INSTITUTE, Rescuing Rikers:
Fireside Chat with Louis A. Molina, available at https://www.youtube.com/watch?v=sESzluNYXeI at
24:28; the City’s November 17, 2022 Status Letter to Court noting “Defendants appreciate the Monitor’s
status report submitted on October 28, 2022 (Dkt. 472), generally agree with its contents and assessments,
and share the Monitor’s concerns about the work that remains to be done.” at pg. 1 (dkt. 476).
192
At the April 27, 2023 Status Conference, the Court “direct[ed] the monitoring team to file additional
special reports if necessary should exigent circumstances present themselves, including if defendants fail
to remain adequately engaged with the monitoring team and appropriately committed to implementing
sustained reform.” See Transcript of April 27, 2023 Status Conference Transcript at pg. 69 lines 14 to 17.
149
when we are making great strides [and] will fuel the flames of those who believe that we cannot
govern ourselves.” 193
The Department repeatedly offers the fact that the current administration inherited
significant problems and dysfunction as a reason for the lack of progress. This is true in some
respects. In fact, all four Commissioners over the past eight years “inherited” a dysfunctional
system. The Monitoring Team appreciates the context and background of what gave rise to the
current state of affairs, and certainly recognizes the complexity of the task. But such references
to a prior administration’s deeds and “macro issues” (e.g., COVID) merely serve to deflect
attention from the fact that the City and Department have an unequivocal responsibility to
address the problems and ensure the safety of those in their custody.
The Monitoring Team fully appreciates the importance of acknowledging progress in
managing the Department and has acknowledged all indications of progress in each of its reports
to date. 194 However, discussions about what has been accomplished must be balanced and must
not overstate progress where it is not warranted, especially with regard to the level of safety in
the jails. Such overstatements normalize the imminent risk of harm and/or minimize the
dangerous state of affairs. The City’s and Department’s apparent lack of perspective is troubling
and further compounded by the Department’s inability to self-correct and its defensiveness when
concerns are raised that the Department is failing to take necessary action on urgent matters.
193
See letter from Commissioner to Monitor, dated May 26, 2023, in Appendix F of this report.
194
See, for example, Monitor’s April 20, 2022 Status Report (dkt. 445) at pgs. 2 to 3; Monitor’s June 30,
2022 (dkt. 467) at pgs. 1, 8, 10 to 11, 18 to 19, 30 to 34; Monitor’s October 28, 2022 Report (dkt. 472) at
pgs. 7 to 9, 32 to 33, 57, 80 to 81, 99 to 100; Monitor’s April 3, 2023 Report (dkt. 517) at pg. 1, 3 to 4,
34, 40, 128 to 129, 131 to 132, 220. See also, April 26, 2022 Status Conference Transcript at 10:20-11:8,
54:15-24, 55:13-56:18; November 17, 2022 Status Conference Transcript at pgs. 48:8-50:22; and April
27, 2023 Status Conference Transcript at pgs. 9:21-10:21.
150
Concerning examples of the lack of context and clarity are demonstrated by two recent
videos produced by the Department. These two videos, one of which was presented to new
recruits and the other to be used in training courses for staff reflect the lack of context and clarity
regarding the Department’s responsibilities in reforming the dire conditions in the jails and a lack
of understanding that, at their core, the Nunez Court Orders mandate significant changes to staff
practice.
• On May 19, 2023, the Department publicly posted a video that was played at the new recruit
graduation ceremony. 195 The video includes themes about challenging and improving
oneself, which are certainly appropriate messages. However, the video exclusively depicts
confrontational situations such as the use of probe teams, the use of OC, and images of
firearms. The video does not promote the need for staff to utilize interpersonal
communication skills, to solve problems and avoid escalating them, nor does it mention the
Department’s ongoing effort to reform its culture. Below are two illustrative images from the
video that was posted on DOC’s public social media page:
195
New York City Department of Correction [@jointheboldest]. “Check out our video that we played this
morning at our recruit graduation ceremony at the NYPD Academy. [Video].” Instagram.
https://www.instagram.com/p/Csbf6ywg7gE/?hl=en.
151
• On June 16, 2023, the Department provided the Monitoring Team with a video that it
produced and had begun to use in its training courses (notably with ESU/SRT) for both
recruits and veteran staff. The video features an agency leader describing the Nunez Consent
Judgment and its original requirements (e.g., new Use of Force policy, increased
programming, investigations and staff discipline, body worn cameras, criteria for promotion,
and increased training), along with the requirements of subsequent Remedial Orders (e.g.,
self-harm, staffing, sick leave). Toward the end of the video, the speaker emphasizes that
“Nunez is not a ‘no use of force policy’ or a ‘no use of force decree’” and comments that
those in custody are “among the most dangerous in the city” and thus “there will be
occasions when force is necessary.” While the Monitoring Team has long supported the safe,
well-timed, properly executed use of force that is proportional to the extant level of threat,
the video’s message lacks appropriate nuance, particularly when commenting on what the
Nunez Court Orders prohibit. Statements such as “What Nunez means is force can never be
unnecessary or excessive” and “Never use force when it is excessive” do not provide staff
with the necessary framework for determining when and how to use force appropriately and
instead distill the essential staff responsibility to a superficial, rather unintelligible slogan.
Further, commentary that the individuals in custody “are among the most dangerous in the
city” only serves to incite staff. 196 The content of this video calls into question the extent to
which the Department takes its obligation to radically change staff practice seriously. The
Leadership, Supervision, and Training section of this report provides a detailed account
regarding the Department’s lack of consultation with the Monitoring Team on this video.
Recent public statements by Department leadership and the Mayor of New York City
have also demonstrated the failure to appreciate the current state of affairs. In these statements,
these leaders lauded the Department’s progress during the past year without appropriate context
196
A transcript of this video is included as Appendix D.
152
and have thus minimized the jails’ grave conditions and the current level of ongoing harm to
people in custody and staff. A non-exhaustive list of examples is shared below:
• In late May 2023, the Commissioner released a statement to the media noting that “[o]ver the
last 18 months, [the Department has] dramatically reduced violence [and] Rikers Island [is]
safer for every person in our custody and every single officer. Simply put, the Department of
Correction is in a much better place today than it was during the last administration.
[Department leadership] have brought this organization back from the brink of collapse and
we will not be deterred in continuing our good work.” 197 Such a statement does not provide
an accurate description of the state of affairs, which remain volatile and unsafe for
incarcerated individuals and staff alike. Further, such statements are clearly belied by the
record in this case and disregard objective data as reported by the Monitoring Team. There is
no objective basis to conclude that violence has been dramatically reduced or the jails are
safer. The jails remain unsafe for incarcerated individuals and staff.
• On June 8, 2023, the Department released a statement noting that the Monitor’s June 8, 2023
Report “appears to move the goalposts by focusing on data from the six-year period prior to
this administration.” 198 This claim appears to be an attempt to obfuscate the Monitor’s
findings. Every Monitor’s report to date has compared outcomes to the inception of the
Consent Judgment, including every Monitor’s report written since 2022 when the new
administration took office. 199 The City itself conceded to the Court that “the City is an
institutional defendant [in the Nunez litigation] and that failure by the institution to take
meaningful action over the last six years [from November 2015 to May 2022] cannot be
ignored.” See May 27, 2022 Status Conference Transcript at pgs. 42, 23:25 and 43, 1.
• On June 8, 2023, the same day the Monitor’s report was filed, the Mayor of New York City
and the Commissioner made public comments (which were published on June 9 and June 12,
2023) suggesting that the Monitoring Team’s concerns related to five serious incidents and
the overall conditions in the jails were somehow inappropriate. 200 The Monitoring Team
197
See Courtney Gross, Report reveals violent, life-altering incidents the last two weeks at Rikers, NY1,
https://www.ny1.com/nyc/all-boroughs/news/2023/05/27/report-reveals-violent--life-altering-incidents-at-
rikers.
198
See Courtney Gross, Federal monitor criticizes department again for lack of transparency, NY1,
https://www.ny1.com/nyc/all-boroughs/politics/2023/06/08/federal-monitor-criticizes-department-again-
for-lack-of-transparency.
See Monitor’s March 16, 2022 Report at pgs. 13 to 15; Monitor’s June 30, 2022 Report at pg. 13;
199
October 28, 2022 at pgs. 60 to 65; Monitor’s April 3, 2023 Report at 37 to 38 and 47 to 52.
200
See Dean Moses, EXCLUSIVE| Correction commissioner, Mayor Adams show Rikers Island security
videos in effort to counter federal monitor’s claims of misdeeds, amNY, https://www.amny.com/police-
fire/rikers-island/exclusive-correction-commissioner-mayor-adams-show-rikers-island-security-videos-in-
153
believes that such comments reflect a failure to fully to appreciate the Monitoring Team’s
findings in every report to date which have noted unsafe and dangerous conditions. The
circumstances at issue were not new nor were they tied specifically to the five incidents
being discussed at the time. The City itself contends that conditions are unsafe as it has filed
Emergency Executive Orders every five days since September 21, 2021. 201 To suggest that
the concerns the Monitor raised in his report were “absurd” and the Department’s responses
to these five incidents reflected “great discipline,” “great patience,” and “professionalism”
fails to appreciate the objective evidence and even in some cases, the Department’s own
findings of wrongdoing. 202 Further details are discussed in the Security, Violence and Use of
Force section of this report and included in the Monitor’s June 12, 2023 Letter (dkt. 544).
Shifting Positions of the City and Department: As noted in the Monitor’s recent
reports to the Court, 203 the City’s and Department’s position on certain issues (e.g., ESU
leadership, awarded posts, Nunez Manager) changes frequently and information is sometimes
misrepresented or later determined to be inaccurate. This makes it difficult for the Monitoring
Team to provide fulsome, accurate accounts of the Department’s progress to the Court. A series
of examples were outlined in the “Failure to Follow Through on Commitments to the Court or
Provision of Incomplete, Misleading and Inaccurate Information to the Court” section of the
Monitor’s June 8, 2023 Report at pgs. 23 to 26. 204 A second such example is outlined in detail in
the Monitor’s June 12, 2023 Letter to the Court (dkt. 544) at pgs. 1 to 2.
effort-to-counter-federal-monitors-claims-of-misdeeds/. See also, Marcia Kramer, CBS2 gets exclusive

look at Rikers Island security tapes mentioned in federal monitor’s scathing report on city jail, CBS New
York, https://www.cbsnews.com/newyork/news/rikers-island-security-tapes-federal-monitor-scathing-
report-government-eric-adams/.
See, e.g. Mayor’s Executive Order 449 signed on July 4, 2023 at https://www.nyc.gov/office-of-the-
201
mayor/news/449-003/emergency-executive-order-449.
202
203
See Monitor’s June 8, 2023 Report at pgs. 15 to 38.
204
The Monitoring Team is aware of the City’s June 12, 2023 letter to the Court (dkt. 548) in which it
reports that “the Law Department’s attorneys would not knowingly make any misrepresentations to the
Court, and we have not done so in this matter” related to the findings on pgs. 23 to 26 of the Monitor’s
June 8, 2023 Report. As an initial matter, certain findings in this section relate to statements made by the
Department, and not the Law Department. Second, with respect to information provided by the Law
Department on behalf of its client (the Department), the Monitoring Team has no basis to conclude, nor
154
The Commissioner’s purported commitment to transparency and his direction to staff
regarding their engagement with the Monitoring Team also suffers from this same lack of clarity
and consistency. On May 26, 2023, in the Commissioner’s letter to the Monitor, he advised that
the Monitoring Team would not be permitted to speak with certain staff to obtain a briefing
because “[b]riefings on ongoing investigations are hardly the norm,” and because the
Commissioner “[does not] know what [the Monitor] would expect [from a briefing]” 205 and
further that information about in-custody deaths would not be provided because “[i]t is not a
requirement under the Consent Decree or the Action Plan” to provide it. 206 Then, about two
weeks later at the June 13, 2023 Emergency Court Conference, the Commissioner represented to
the Court that “if I believe even that there is even a 1 percent chance that it might intersect with
the work of the core mission of [the Consent Judgment], I have encouraged my staff to confer
with the monitor or a member of the monitoring team. That is still ongoing [as of June 13,
2023].” At pg. 34, 24:25 and pg. 35, 1:3. Despite this claim, the very next day the Monitoring
Team learned that the Department elected to proceed with training programs for the ESU/SRT
teams and to promote the newest ADW class without providing the Monitoring Team the
requested training materials or consulting on its contents. Further, the video providing an
overview of the Nunez Court Orders and the use of force policy (discussed above) was not
did the report allege, that the Law Department knowingly made misrepresentations. However, this does
not alter the fact that some information provided to the Court by the Department (via the Law
Department) could not be verified by the Monitoring Team. In fact, the City’s June 12, 2023 letter only
serves to underscore the Monitoring Team’s concern about shifting positions and information flow
between City and Department officials and the Law Department.
205
206
The Monitoring Team contends it is entitled to access to such information as described in the
Monitor’s June 8, 2023 Report at pgs. 25 to 29. The City subsequently reported to the court that “not
reporting a death in custody pursuant to that request was an error.” June 13, 2023 Emergency Conference
Transcript at pg. 44, 24:25.
155
provided to the Monitoring Team in advance nor was the Monitoring Team consulted on its
substance. Despite the Monitoring Team’s requests to review training content and the obvious
connection to the Monitoring Team’s work, the Department did not seek consultation.
Recently, in late June 2023, the Department publicly reported on social media that
“Commissioner Molina relaunched bi-weekly TEAMS (Total Efficiency Accountability
Management System) meetings [to bring] leadership from across the uniformed and civilian
ranks together to share best practices, improve training, evaluate facility performance, and
increase accountability by using data and metrics and translating them into strategic, actionable
solutions.” 207 The public statement went on to report that the meetings purportedly focused on
“the significant drop in violence, including a 36% decrease in slashings and stabbings calendar
year to date, decreases in assaults on staff and injuries to people in custody, and dramatic
increases in court production.” 208 The Commissioner’s efforts to revamp and reinstate these
meetings which address specific requirements of the Nunez Court Orders is laudable, however,
the Monitoring Team has raised questions regarding the Department’s assessment of its data as
discussed in the Security, Violence and Use of Force section of this report. 209 In the past (and
during the period of time when the now Commissioner served as the Chief Internal Monitor), the
Monitoring Team observed these meetings routinely. 210 The Department’s three prior
Commissioners extended an open invitation to the Monitoring Team to observe these
207
New York City Department of Correction [@jointheboldest]. “This week Commissioner Molina
relaunched biweekly TEAMS (Total Efficiency Accountability Management System) . . .” Instagram.
https://www.instagram.com/p/Ct2F06hMIhe/?hl=en.
208
See, id.
209
See, also, the Monitoring Team’s findings regarding the First Remedial Order, § A, ¶ 2 outlined in
prior reports.
See for example the Monitor’s 3rd Report at pg. 161; Monitor’s 5th Report at pgs. 22 to 24; Monitor’s
210
11 Report at pgs. 108 to 110; Monitor’s 12th Report at pgs. 42 to 43.

th
156
meetings. 211 However, the Monitoring Team was not advised (before or after) that these
meetings had been reinstated and were occurring, has not been consulted about the data and
metrics being utilized, and only learned that the meetings had been relaunched through public
reporting by the Department. Such a deviation in practice clearly does not comport with the
Commissioner’s claims of openness and transparency with the Monitoring Team.
The lack of notification and consultation on matters directly related to the Nunez Court
Orders, in particular, data, metrics and other considerations to identify areas of weakness or
progress related to the core goals of Nunez only serves to inhibit the work necessary to advance
the reforms under the Nunez Court Orders. A number of other examples in which Department
leadership failed to consult with the Monitoring Team on issues that are clearly Nunez-related
(e.g., use of force practices with those who refuse court and the use of restraints in ESU-Level 1)
are outlined in this report and in the Monitor’s June 8, 2023 Report (e.g. at pgs. 22 and 34). The
Commissioner’s and the Department’s actions simply do not align with his stated commitment to
fully engage with the Monitoring Team.
DOC’s Inability to Manage the Nunez Court Orders and Lack of Transparency: In
the year since the Action Plan was put into effect, the Department’s accuracy, transparency and
collaboration with the Monitoring Team has markedly deteriorated. The Department’s approach
to working with the Monitoring Team began to falter in Fall 2021 and, during that Monitoring
Period, the Department was downgraded to Partial Compliance with Consent Judgment §XVIII,
¶ 3 212 (i.e., requiring an individual to coordinate compliance and to serve as the point of contact
211
For a time, from Fall of 2022 to Spring 2023, the Department invited a representative of the
Monitoring Team to observe its weekly meetings regarding the Action Plan. However, these meetings
ceased in Spring 2023.
212
See Monitor’s 12th Report at pgs. 121-122
157
with the Monitoring Team) after having been in Substantial Compliance for the previous 11
Monitoring Periods. The collaboration with the Monitoring Team further devolved in early 2022
with the transition to the current Department leadership. 213 Some improvement to the
Department’s position on information-sharing and willingness to collaborate was observed
following the issuance of the Monitor’s March 16, 2022 Report, but these improvements were
not sustained. 214 In late 2022 and early 2023, similar problems re-emerged 215 and have since
intensified, as reported in the Monitor’s June 8 and 12, 2023 Reports. 216 Key problems include:
• failing to provide the Monitor with the full and complete information necessary to
perform his responsibilities,
• deflecting attention and providing inconsistent, inaccurate, incomplete or misleading
information to the Monitoring Team and to the Court,
• data errors and poorly vetted information provided to the Monitoring Team, 217
• failing to follow-through on commitments made to the Court,
• making premature conclusions, while not providing the underlying facts to the
Monitoring Team,
• failing to consult and collaborate with the Monitoring Team on Nunez-related policies
and practices,
213
See, Monitor’s March 16, 2022 Report at pgs. 24 to 29.
214
See Monitor’s April 4, 2022 Report at pgs. 3-4 noting some improvements but reiterating its March 16,
2022 recommendations regarding the Department’s approach to working with the Monitoring Team. See
also April 26, 2022 Status Conference Transcript at pg. 11, lines 4 to 8 and pg. 55, lines 13 to 17;
Monitor’s October 28, 2022 Report at pgs. 7 to 9; November 17, 2022 Status Conference Transcript at pg.
65, lines 12 to 22.
215
See Monitor’s April 3, 2023 Report at pgs. 113 to 115
216
See Monitor’s June 8, 2023 Report at pgs. 15 to 38, Monitor’s June 12, 2023 letter (dkt. 544) and
discussed at the June 13, 2023 Emergency Conference Transcript at pgs. 14 to 15.
217
The Monitoring Team acknowledges that data entry errors can and do occur. However, certain data
issues were identified only after significant follow-up from the Monitoring Team and were the result of
the Department’s failure to take reasonable steps to ensure the data were accurate. For example, the data
regarding awarded posts was not internally vetted for over a year, despite repeated follow-up from the
Monitoring Team. These large-scale problems cannot simply be deemed purported “errors” as contended
by the City at the June 13, 2023 Emergency Court Conference Transcript at pg. 30, 20:25.
158
• failing to encourage staff to cooperate with the Monitor,

• dwindling resources assigned to Nunez matters,
• poor internal coordination on Nunez matters,
• inability to produce complete and relevant information, and to properly manage deadlines
and priorities.
The number of actions taken, across various divisions and actors within the Department,
that do not comport with the Nunez Court Orders is distressing. The Commissioner previously
served as the Chief Internal Monitor and Acting Commissioner of the Nunez Compliance Unit so
his knowledge of the Nunez Court Orders’ substance is irrefutable. There is simply no reasonable
basis for Department’s leadership to claim confusion or lack of awareness of the Nunez Court
Orders, or for failures to seek guidance if there is ambiguity. These issues directly inhibit the
Department’s ability to advance the reform effort.
As a result of these issues, the Monitoring Team proposed that the Court issue an order to
further clarify the City’s and Department’s obligations to work with the Monitor so they may
fulfill their responsibilities. At the June 13, 2023 Emergency Court Conference, the City
acknowledged “errors” 218 in its management of the Nunez matter and consented to the entering
of an order (with a few noted exceptions). 219 In entering the June 13, 2023 Order, the Court
found that “it is unfortunately necessary to clarify and, again, underscore the responsibilities [of
the Monitor] that have been imposed by orders that have been in place for years and more recent
orders. But to the extent there are any ambiguities and to the extent that specifics of timing and
execution of methodology of responsibilities is necessary to make sure that we are all clear, it is
appropriate and it is necessary.” See June 13, 2023 Emergency Court Conference Transcript at
218
See, e.g., June 13, 2023 Court Transcript at pg. 44, 24:25.
219
The City had three noted objections to § I. ¶¶ 1 and 7.
159
pg. 85, 11:18. The fact that a Court order was necessary to compel the Department to properly
collaborate with the Monitoring Team nearly eight years after the Consent Judgment went into
effect raises significant questions about the City’s and Department’s commitment to reform.
While the June 13, 2023 Court Order has resulted in some progress in the Department’s work
with the Monitoring Team, the Department still continues to fail to consult and seek approval
from the Monitor as required (e.g. in early July the Commissioner authorized the use of three
point restraint without consulting or seeking approval from the Monitor as discussed in the
Management of Incarcerated Individuals section of this report) and the Monitoring Team must
continue to rely on public reports to obtain relevant information (e.g. on July 7, 2023, the
Monitoring Team only learned about the total number of individuals promoted to ADW through
DOC’s public social media content as discussed in the Leadership, Supervision and Training
section of this report).
Department’s Efforts to Address the Monitoring Team’s April 2023 Recommendations
In April 2023, as outlined in the Monitor’s April 3 and April 24, 2023 Reports, the
Monitoring Team made a number of recommendations to facilitate progress on various initiatives
in the Action Plan (collectively the “April 2023 Recommendations”). 220 At the April 27, 2023
Status Conference the City reported that “[t]he department has agreed on deadlines for meeting
specific recommendations with the monitor and will carefully work with the monitor on all of the
others. The way to keep the results moving in the right direction, as they are right now, is to let
the teamwork of Commissioner Molina and his staff and the monitoring team continue.” See
April 27 Status Conference Transcript at pg. 17, 18:23. Further, the Deputy Monitor explained to
A comprehensive chart of these recommendations was filed with the Court on April 28, 2023 (dkt.
220
527).
160
the Court that the Monitoring Team’s “engagement with the department since [the Monitoring
Team] submitted the recommendations, both after the April 3 report and actually, in fact, after
the April 24 report, has been strong.” See April 27 Status Conference Transcript at pg. 67, 1:4.
The City acknowledged that “we’ll have an opportunity to, you know, take remedial steps”
should the Monitoring Team report that the City or Department refuse to do the work required by
the Nunez Court Orders. See April 27 Status Conference Transcript at pg. 52, 16:25.
Unfortunately, the Department has not sustained an adequate level of engagement in
addressing the April 2023 Recommendations, albeit with certain exceptions (e.g., addressing the
issues related to investigations). The Monitoring Team has attempted to engage the Department
to advance its efforts to address the April 2023 Recommendations, but the Department has made
little progress. The Department’s approach to the April 2023 Recommendations is emblematic of
many of the issues outlined in this section of the report. For instance, the Department has
repeatedly advised that other emergent issues and limited resources have inhibited its ability to
timely address the recommendations and actively engage and consult with the Monitoring Team.
In addition, despite a commitment to provide the Monitoring Team with a “detailed plan” for
how the Department would address the recommendations, in most cases, the plan that was
produced did not provide fulsome information about how the Department will address the
recommendations. Instead, the Department’s response either reported on recent events (e.g., that
a meeting occurred) or made only vague statements that the Department intended to adopt the
recommendation or is working to develop a solution. For instance, in response to the
recommendations regarding Security Initiatives, the written response with a “plan” simply noted
that the Security Manager “provided [the Monitoring Team] a demonstration of the OC
Dashboard on 5/10/23” and that roll call trainings have occurred with supervisors. No
161
overarching plan on what concrete steps will be taken has been provided. In another example, in
response to the April 2023 Recommendation that the screening policy must be revised, the
Department reported that the revision “would be completed before the next round of
promotions,” even though the next round of promotions had not been scheduled at the time. 221
Ultimately, as discussed in other sections of this report, the Department failed to update its
policy before the next round of promotions, and only after considerable prodding by the
Monitoring Team did the Department agree it will now update its policies and procedures
(although the timeframe for completion is unknown).
Further, despite the Monitoring Team’s repeated requests for timelines to be attached to
each recommendation to ensure these initiatives move forward, almost none have been provided
and to the extent a timeline was provided the Department has generally failed to meet the date it
proposed. It is also unclear, for many of these recommendations, whether any specific individual
with operational expertise has been assigned the responsibility for addressing the
recommendation and whether there is any concrete plan about how recommendations are to be
addressed.
The Department shared an update on its efforts to address the April 2023
Recommendations on June 26, 2023, a month after the Monitoring Team shared its feedback.
While additional information was provided, most of the responses suffered from the same issues
described above. Further, consistent with the Monitoring Team’s experience with the
Department on many issues, the Department reports that it has assigned a new person to address
the issue and a new plan is now underway. For instance, with respect to screening, the Nunez
221
It was subsequently learned that a group of ADWs would be promoted in mid-June 2023, followed by
a class of Captains in July 2023.
162
Manager will now manage that process. The Monitoring Team certainly welcomes the leadership
of the Nunez Manager (and others) to address these issues, but remains cautious as to whether
this will result in any forward movement on the issue given the Department’s history, including
over the last year of the Action Plan, of unfulfilled promises and lack of sustained reform efforts.
Overall, the Department’s efforts to address the April 2023 Recommendations are
languishing. This is particularly disappointing given the Court’s statement that it will be “very
unpleasantly surprised if [the Court] hear[s] from the monitoring team that the recommendations
are not being taken seriously and moving forward at the necessary rapid pace.” A chart of the
current status of the April 2023 Recommendations is provided in Appendix C of this report. The
Monitoring Team continues to maintain that the Department’s adoption of the April 2023
Recommendations are necessary to support advancing the reforms. Given the limited progress in
advancing these recommendations through this process, the Monitoring team has recommended
that the Court direct the City and Department to address certain priority items, outlined in the
Conclusion of this report, to ensure that the City and Department take the necessary action on
these items without further delay.
Update on Issues Discussed at the June 13, 2023 Emergency Court Conference
Since the June 13, 2023 Emergency Court Conference, the Department has taken a
number of actions:
• Nunez Manager: On June 14, 2023, the Monitor approved the selection of the Nunez
Manger pursuant to the June 13, 2023 Order, § I, ¶ 7. For years, the Monitor and Deputy
Monitor have had an extensive and productive working relationship with the individual
serving as the Nunez Manager that even pre-dates the execution of the Consent Judgment.
The Monitor found that the individual possesses the necessary expertise in the
requirements and provisions of the Nunez Court Orders and is suitable for the role as the
Nunez Manager. In just a few weeks, the Nunez Manager has proven to be open and
163
transparent, adept at the role, and has facilitated the advancement of initiatives within the
Department, provided critical assistance to the Monitoring Team, and overall
demonstrated the value and need for this role to support the Department’s work to
achieve compliance with the Nunez Court Orders. It must be emphasized that the Nunez
Manager’s anticipated workload will require the Department to assign additional staff
and resources to ensure that she can fulfill her responsibilities. The Monitoring Team
strongly recommends the City and Department ensure the Nunez Manager has any
necessary resources as soon as possible. The work of the Nunez Manager will certainly
support and facilitate coordination of Nunez matters across the agency and facilitate the
Monitoring Team’s ability to fulfill its responsibilities. However, the presence of the
Nunez Manager does not resolve the management, security, operational, and
implementation issues discussed throughout this report and others, which must be
adopted and addressed by the individuals actually responsible for operating and
managing the Facilities.
• Communication to All Staff: On June 15, 2023, the Monitor approved the
communication to all Department leadership and staff regarding their obligations under
the Nunez Court Orders, pursuant to the June 13, 2023 Order, § I, ¶ 1. The Monitoring
Team was consulted on the substance and provided input that was considered and
incorporated prior to the communication being finalized and distributed. On June 15,
2023, the communication was emailed to all staff who have an assigned email account.
However, not all staff have an email address, so the Department reports it will mail
copies to approximately 2,400 staff who do not have an email address by July 20, 2023.
• Notification of Deaths In-Custody and Compassionate Releases in 2023: An update
on the information provided to the Monitoring Team pursuant to § I ¶ 2 of the June 13,
2023 Order is outlined in the Security, Violence and Use of Force section of the report.
• Immediate Notification to the Monitor of Serious Events: The Nunez Manager has
been advising the Monitoring Team of serious injuries or serious conditions that require
admission to a hospital.
• Department-Wide Remedial Steps to Address the Five Incidents Discussed in the
May 26, 2023 Special Report: The Department is consulting with the Monitoring Team
on updating its existing policies to address individuals who are unclothed and revising
164
procedures to require that an incarcerated individual who is involved in a violent

encounter should be seen at the clinic on an “urgent basis.” With respect to installing a
preventive barrier, the Department reports that it would like to install the barrier and is in
the process of seeking approval from the State Commission of Correction for the
construction.
• Policy Vetting: The Department reported that the Nunez Manager will now vet all new
policies prior to their promulgation to ensure Nunez-matters are properly considered and
that the necessary consultation with the Monitoring Team occurs.
• Recent Issues Regarding Consultation and Collaboration: Overall, the appointment of
the Nunez Manager has helped to improve the facilitation of information to the
Monitoring Team. However, the Department is still struggling to adequately engage with
the Monitoring Team even after the entry of the June 13, 2023 Order. This report
includes a list of critical areas in which the work of various Department officials is not
consistent with the Nunez Court Orders, the work is languishing when the pace should be
accelerated, and consultation and collaboration with the Monitoring Team is still not
occurring. It is also deeply disturbing that even after the issuance of the Court’s June 13,
2023 Order that the Department continues to fail to consult with the Monitoring Team as
required (e.g. on its restraint policy) and fails to provide complete and accurate
information to the Monitoring Team. It remains troubling that the Monitoring Team
continues to first learn about Nunez related matters via public reporting.
Conclusion
The cyclical dynamics outlined in this section of the report means that on balance, the
Department continues to operate in a persistent crisis mode and lacks a clear and overarching
plan of action for implementing the changes necessary for achieving reform.
165
OVERARCHING INITIATIVES RELATED TO REFORM
A number of overarching initiatives are necessary to support the reform efforts underway.
These include the work of the City’s Rikers Island Interagency Task Force (“Rikers Task
Force”), recruiting and hiring various staff for the Department, and addressing the protracted
length of stay for individuals in custody. Each is taken in turn below.
Citywide Task Force
The City reports that the Rikers Task Force, 222 comprised of representatives from key
City agencies, continues to meet weekly to address issues related to the reform effort and to
ensure they are supporting the work by eliminating obstacles to implementation. The City reports
that the City Task Force has discussed the following issues since April 2023: OMB approvals,
staffing levels, recruiting/hiring/retaining staff, salaries, job requirements, remote work, staff
disciplinary cases, timekeeping, and programming.
Recruiting, Hiring and Onboarding New Staff
The Department needs strong recruitment and an efficient hiring process to support the
reform effort given the need for additional staffing support in many areas. 223 Recruiting qualified
candidates to work in this Department is particularly challenging given its location in a
residential area in Queens (with its attendant transportation and parking issues), the disparaging
public discourse about the agency, and general constraints of City employment (including the
lengthy onboarding process, few options for remote work, residency requirements, salary, etc.).
222
As required by the Action Plan, § B, ¶ 1.
223
As required by the Action Plan, § B, ¶¶ 2 and 3.
166
Quite simply, recruiting individuals to work at the Department of Correction is challenging and
difficult. It is for these reasons that creative recruitment efforts for positions with attractive
benefits are needed to attract qualified candidates.
An essential element in the recruitment effort is for the Department to attract individuals
with correctional expertise, preferably from other jurisdictions, to serve in leadership positions;
staff for the Trials Division, Investigations Division (“ID Division” or “ID”) and Legal Division;
and civilian staff to backfill positions previously held by uniform staff, once those positions have
been identified. The recruitment effort to identify qualified candidates is supported by the HR
Division in addition to a couple of executive search firms. The HR Division advertises positions
via job fairs and online marketing. Finally, the Department, working with the Task Force,
obtained a waiver of residency requirements from DCAS for most new hires effective June 9,
2022.
The Department has successfully hired a number of qualified individuals for leadership
positions. The table provided in Appendix A identifies the Department’s efforts to fill leadership
positions between January 1, 2022 and June 2023, including the position title, the date of
appointment, and the departure date, if applicable.
The Monitoring Team continues to strongly recommend that the City and Department
afford staff in the ID, Legal, and Trials Division an opportunity to work remotely in order to
make the positions more attractive. Even if permitted for only a few days per week, this benefit
would support the effort to recruit qualified candidates. Currently, a potential remote work
option is limited to those covered by the City’s agreement with DC37 union, where a pilot will
be developed and is expected to begin during summer 2023. The Department reports that about
80 individuals in the ID Division (note, not the Legal or Trials Divisions) are part of the DC37
167
union that is piloting remote work. The Department is in the process of developing a remote
work policy to support the pilot. The City reports that it intends to engage with other staff and
unions representing those who work for the Department to expand the work-from-home pilot.
The Department has reported that low salaries are a barrier to recruiting staff to work in
both the ID Division and the Trials Division, among other divisions. The City reports that in
general, due to fiscal constraints, it has limited flexibility to increase salaries, even for positions
that are difficult to fill. The City reported it does not yet know how these fiscal constraints may
impact a potential increase in salary for ID staff. The City reported that a salary increase for
attorneys in the Trials Division was approved by OMB and went into effect in July 14,
2022. However, the Trials Division reports that even with the increase, the current salary being
offered remains an impediment to hiring. The Department has indicated that it intends to submit
a proposal to OMB to increase salaries for ID staff but the status of potential efforts to increase
salaries for the Trials Division is unknown. The City reports that the Rikers Task Force can
facilitate inter-agency coordination and timing of potential requests for salary increases if
necessary.
Reducing the Population & Addressing Increasing Lengths of Stay in Custody
Reducing the jail population is necessary to support the overall reform efforts because it
would reduce the number of people exposed to the dangerous conditions in the facilities. Given
the imminent risk of harm to those incarcerated in New York City’s jails, all stakeholders must
continue to maximize every possible avenue to reduce the population, by reducing the number of
168
people sent to jail, expeditiously processing court cases, or via release to the community. 224
Below is a table of table provided by the City regarding length of stay on Rikers. 225
The increasing length of stay and the proportion of people who have been in custody for
more than one year was discussed in detail in the Monitor’s April 3, 2023 Report at pgs. 117 to
121. The City reports that the Mayor’s Office of Criminal Justice (“MOCJ”) has worked on the
following steps since the April 3, 2023 Report to reduce the lengths of stay in the jails: 226
• Coordination with DOC: MOCJ coordinates with DOC on a weekly basis to discuss
individuals who have been in custody beyond a year.
• Coordination with District Attorneys in Each Borough: MOCJ continues to meet
regularly with representatives from the District Attorney’s Office in each Borough to
discuss barriers or delays affecting the resolution of cases with long lengths of stay.
224
New York State Correction Law 6-a affords the City the power to release incarcerated individuals,
who have been sentenced to under one year behind bars, into a work release program. Since 2020, the
City has released 327 incarcerated individuals to work release programs (297 in 2020, 13 in 2021, 62 in
2022, and 0 in between January 1, 2023 and June 13, 2023).
225
The City reports that the 2020 and 2021 snapshots are sourced from a live Office of Court
Administration DSH data feed. This feed has undergone changes over the past year that makes the 2020
and 2021 extracts less reliable. The present data snapshot from 2023 comes from a new updated OCA
data extract that relies on the OCA UCE feed. This most recent data is better quality than the 2020 and
2021 snapshots. Additionally, because of these different sources, the 2023 snapshot is not directly
comparable with the 2020 and 2021 snapshots.
226
As required by the Action Plan, § B, ¶ 4.
169
• Coordinating with the Center for Justice Innovation (“CJI”): Since October 2022,
MOCJ has worked with the CJI (formerly the Center for Court Innovation, or CCI) to
identify any overlap in target populations and ways in which to expedite cases. Further,
MOCJ has been coordinating with the CJI on a recently passed NYC Administrative
Code § 9-310 that requires a jail population review program to identify people in custody
of the DOC whose cases could be resolved or who could be safely released into
community-based programs. This law is required to be implemented in a phased
approach in Fall 2023 and Spring 2024.
The Monitoring Team recognizes that reducing length of stay is only one component of
broader reforms to reduce the number of people in custody, and as noted above, other initiatives
must complement this work. Court processing is a complex endeavor involving many actors
beyond the Department, which can sometimes lead to a diffusion of responsibility such that no
one agency takes responsibility for the outcome. An individual’s length of stay in jail is the
product of actions by a variety of stakeholders—the courts, prosecutors, and defense counsel.
With so many agencies and individual actors involved, all too often, the responsibility for
addressing delays and other structural problems becomes diffuse and uncoordinated. It is
imperative for these stakeholders to collaborate to swiftly and creatively to find ways to process
cases more expeditiously through the court system and to otherwise limit the use of secure
detention (e.g., via joint action review committees, jail diversion programs, etc.). This group of
stakeholders collaborated effectively at the onset of COVID-19 to significantly reduce the jails’
populations, so such actions are clearly possible. A comparable level of action is required to limit
exposure to and relieve pressure on the jails.
170
CONCLUSION AND MONITOR’S ASSESSMENT

RELATED TO § G ¶ 6 OF THE ACTION PLAN
The Monitoring Team has established an extensive and detailed record of neutral and
independent assessments of the City’s and Department’s efforts to achieve compliance with the
Nunez Court Orders. As part of this work, the Monitoring Team has identified when progress has
been made and has made painstaking efforts to identify and report on even incremental changes
that move the Department toward compliance (even when it has been difficult to obtain
information from the Department). The Monitoring Team has always approached its work
overall with cautious optimism that the necessary evolution and culture change could occur. To
that end, in the past year, the Monitoring Team supported the development and implementation
of the Action Plan in hopes it would catalyze the necessary momentum to advance the reforms.
Further, the Monitoring Team has and continues to offer significant technical assistance to the
Department to support its efforts to achieve compliance with the Nunez Court Orders.
An assessment of the totality of the circumstances after eight years of monitoring and
after one year of the Action Plan’s implementation is such that the cautious optimism that
characterized prior reports and testimony can no longer be maintained. As noted in the Monitor’s
April 3, 2023 Report on the Department’s Action Plan:
The Monitoring Team has provided a significant volume of reporting on the

conditions of the jails. What must not be lost in this maze of documentation is the
fact that real harm to both people in custody and staff continues to occur at
unacceptable levels. The unacceptable rates of use of force, fights, assaults on staff
and stabbing and slashings cause both physical and emotional harm. The sheer
number of incidents cannot begin to capture the real abject harm that occurs in this
setting. These incidents can be described and reported in words, but it is almost
impossible to understand how the current “predatory environment” is experienced
by the typical person in custody or staff member. The harm can be witnessed
171
directly in the images from inside the jails— images of chaos, disorder, and
sometimes serious injuries—which still belie the real fear felt by the participants,
witnesses, and bystanders in real time.
That statement continues to reflect the current concerns of the Monitor and the
Monitoring Team. Of additional concern is that over the past eight years and, particularly during
the past year, the current state of affairs in the New York City jails, which reflects unprecedented
rates of use of force and violence, appears to have become normalized. The Monitor and the
Monitoring Team are concerned by this apparent normalization of something that is clearly
abnormal. Real harm is occurring to real people in real time, and that cautious optimism that
meaningful change can occur in this system has significantly diminished given the current
climate of regression in key areas and the lack of sustained progress in others coupled with an
increasing and troubling lack of transparency.
Assessment of Progress & Risk of Harm Pursuant to Action Plan § G. ¶ 6
The Action Plan, pursuant to § G, ¶ 6, requires the Monitor to make an assessment as to
first, whether the Department has made substantial and demonstrable progress implementing the
requirements of the Action Plan and, second, whether there has been a substantial reduction in
the risk of harm. This report and all others filed to date have been considered and subsumed in
the assessment below. Each requirement is taken in turn.
With respect to the Monitor’s assessment related to progress with implementation, the
Monitoring Team has considered all of the work completed during the past year, since the Action
Plan was entered. There is no question that some progress has been made in some areas (e.g.,
hiring executive staff with demonstrated expertise in sound correctional practice, increasing the
number of staff available, improving enforcement of sick leave policies, modernizing staff
172
scheduling systems, reducing the disciplinary backlog, and improving classification practices and
SRG blending). However, many initiatives remain incomplete, many gaps remain, and worse,
there has been a disturbing level of regression in a number of critical areas and essential
practices during the past year (notably, the investigation of and accountability for use of force
related misconduct, the conduct of ESU, quality of training programs, pre-promotional screening
and the Department’s overall management of the Nunez Court Orders). Accordingly, the
Monitor’s assessment is that the City and Department have not made substantial and
demonstrable progress in implementing the reforms, initiatives, plans, systems, and practices
outlined in the Action Plan. Compounding the lack of progress is what appears to be the
Department’s inability to identify (and therefore address) the objective evidence regarding the
current state of affairs, seeming rather to ignore or try to diminish the import of the pervasive
dysfunction and harm that continues to occur daily in the jails. Further, the Department’s failure
to adequately manage the Nunez Court Orders and provide information to the Monitoring Team,
especially in light of the Court’s June 13, 2023 Order (as described throughout this report) is
deeply disturbing.
With respect to the Monitor’s assessment regarding whether a substantial decrease in the
risk of harm has occurred, the Monitoring Team has considered all the qualitative and
quantitative metrics related to the harm faced by people in custody at the hands of other
incarcerated individuals, staff and/or themselves. Throughout the year that the Action Plan has
been in effect, the jails have remained dangerous and unsafe for incarcerated individuals and
staff. Accordingly, the Monitor’s assessment is that there has not been a substantial reduction
in the risk of harm currently facing incarcerated individuals and Department staff.
173
In connection with this assessment, it must also be emphasized that the Department
remains in non-compliance with the implementation of the Use of Force Policy, as required by §
IV, ¶ 1 of the Consent Judgment, which is a seminal provision of the Nunez Court Orders. The
Use of Force Policy was designed to ensure the safe, appropriate, proportional use of physical
intervention in a wide array of situations and the Department’s continued over-reliance on the
use of force, and the frequency with which it is unnecessary or excessive, or contributes directly
to the unsafe conditions in the jails. The Department was first found in non-compliance with the
implementation of the Use of Force Policy in the Fifth Monitoring Period (July to December
2017). 227 The Department is no closer to achieving compliance with this seminal provision of the
Nunez Court Orders today than it was when the Consent Judgment began. Further, and deeply
concerning, is that the Department has not improved its security practices and is in non-
compliance with Action Plan § D, ¶ 2 as detailed in the Security, Violence, and Use of Force
section of this report.
The Monitoring Team has long reported that there are no ready-made solutions to address
the complicated issues facing this agency and that reform is going to take far longer than the
urgency of the situation demands. This remains true, but the current trajectory is sorely
inadequate to the task of untangling the dysfunction in this agency.
227
The Monitoring Team did not assess compliance with any provisions of the Consent Judgment or
Remedial Orders for the period between July 1, 2021 and December 31, 2021 (the “Thirteenth Monitoring
Period”). The Court suspended the Monitoring Team’s compliance assessment during the Thirteenth
Monitoring Period because the conditions in the jails during that time were detailed to the Court in seven
status reports (filed between August and December 2021), a Remedial Order Report (filed on December
22, 2022) as well as in the Special Report filed on March 16, 2022 (dkt. 441). The basis for the
suspension of compliance ratings was also outlined in pgs. 73 to 74 of the March 16, 2022 Special Report
(dkt. 438).
174
The ongoing harm and lack of safety in the facilities cannot continue unabated. The
City’s and Department’s on-going failure to implement initiatives to improve the underlying
security deficiencies and failed operational practices (as outlined in the Security, Violence and
Use of Force section of this report and throughout this report) coupled with the City and
Department’s unwillingness and inability to acknowledge the myriad of issues, disturbing
regression to address core issues of the Nunez Court Orders, and the lack of urgency to address
these matters has become normalized. Real people are experiencing real trauma and pain
and, in some cases are suffering irreparable injuries and death, as noted throughout this
report and in prior reports.
These dangerous conditions and disturbing dynamics compel the Monitoring Team to
recommend that the Court consider the initiation of contempt proceedings in order to coerce the
City, Department and the Commissioner to:
(1) “make urgently needed changes” 228 and “to make up for lost time and increase the
safety and rational and appropriate operation of the institution as soon as possible. And that
requires a pace faster than any that we’ve managed to achieve so far” 229;
(2) improve security initiatives, in particular to address non-compliance with the
requirements of the Second Remedial Order, ¶ 1(i)(a), and the Action Plan, § D, ¶ 2;
(3) ensure the Department manages the Nunez Court Orders as required, including, but
not limited to, consulting and seeking approval, as necessary, with the Monitoring Team (e.g.
228
As directed by the Court in its June 14, 2022 order (dkt. 466).
229
As directed by the Court at the April 27, 2023 Status Conference. See Transcript at pg. 68: 14 to 19).
175
consulting and seeking approval on use of force policies and practices 230) and ensuring the
information that is provided is complete, responsive so the Monitor may fulfill his
responsibilities under the Nunez Court Orders.
The Monitoring Team appreciates “civil contempt is a potent weapon meant to coerce a
party into future compliance with a court order.” 231 The Monitoring Team does not make such a
recommendation to the Court lightly and, in fact is doing so only after it has exhausted other
available strategies to achieve compliance. However, as demonstrated throughout this report, the
City’s and the Department’s efforts have languished, regressed in some areas, and in other areas
it appears that steps may have been taken that run counter to the overall goals and requirements
of the Nunez Courts Orders. This is all despite the persistent efforts made to date by the
Monitoring Team to work collaboratively and advance the reforms coupled with the failure of
multiple remedial orders to achieve compliance. 232 Consequently, the Monitoring Team is
recommending that civil contempt proceedings be initiated on the three items above, at a
minimum, because they are condition precedent to achieving compliance with the Nunez Court
Orders more broadly.
230
As described in Consultation on UOF related polices portion of the Security, Violence and Use of
Force section of this report. Over the last few months, the Commissioner has repeatedly approved
changes to use of force practices and policies without consulting or seeking approval of the Monitor
despite the fact that such consultation and approval is required by the Nunez Court Orders.
231
See Court’s March 13, 2023 Order (dkt. 511) at pg. 27.
232
Even on more discrete matters, such as Intake, despite significant scrutiny and litigation before this
Court, the Department still has not implemented ITS tracking that it reported directly to the Court would
be completed by March 15, 2023. See Defendants’ Memorandum of Law In Opposition to Plaintiffs’
Motion for Civil Contempt at pgs. 10 and 13 (dkt. 505). Unfortunately, the Court’s finding in its March
13, 2023 Order (dkt. 511) at pg. 29 that the Department had demonstrated a “recent sense of urgency and
dedication” has not continued (as outlined in the Management of Incarcerated Individuals section of this
report).
176
With respect to how the reforms will be managed and implemented moving forward, it is
for the Court and the Parties to determine the course forward. Thus far, the City and Department
have repeatedly and consistently demonstrated they are incapable of effectively directing the
multilayered and multifaceted reform effort and continuing on the current path is not likely to
alter the present course in any meaningful way. The Monitoring Team remains ready to serve as
a resource to support the development of a structure that is capable of this task.
Next Steps
The Monitoring Team is cognizant that the initiation of potential contempt proceedings
and the formulation of any additional remedial relief will take time and require significant
consultation among the Parties and the Court. Outlined in this section is a summary of proposed
next steps regarding: (1) the Parties’ and Monitoring Team’s meet and confer prior to the August
10, 2023 Court Conference, (2) the City and Department’s areas of focus on the reform effort
over the next few months, (3) the Monitoring Team’s recommendations for court-ordered relief
for short-term priorities over the next few months, and (4) the Monitoring Team’s reporting
schedule for the rest of the year.
• Steps Between the Monitor’s July 10, 2023 Report and the August 10, 2023 Court
Conference
As directed by the Court, the Parties and the Monitoring Team will meet and confer
regarding the Monitoring Team’s recommendation for consideration of the initiation of
immediate contempt proceedings as well as the structure and timing of potential motion practice
on broader remedial relief. The Monitoring Team has scheduled three meet and confer sessions
with all Parties to occur in July 2023. The Monitoring Team will also meet with the Parties
177
individually on various occasions during this time. Additional consultation will be scheduled as
necessary.
The Monitoring Team will file an update on this process and any substantive matters for
the Court’s consideration on August 7, 2023, by 2:00 pm. The Monitor’s August 7, 2023 Report
will also include the positions of each of the Parties regarding potential motion practice.
• Continued Prioritization of Foundational Issues
The Monitoring Team appreciates that proceedings before the Court and crafting
additional remedial relief will take time. In the meantime, the City and Department must
continue to focus on developing and implementing core foundational practices as a necessary
precursor to the Department’s ability to achieve compliance with the other requirements of the
Nunez Court Orders. The specific requirements of the Action Plan must therefore continue to be
the focal point and priority of the reform effort. In other words, requiring the Department to
comply with all the requirements of the Nunez Court Orders simultaneously is not viable and
will only further degrade conditions. Accordingly, the Action Plan must remain the focal point
for the City and Department’s work at least through December 31, 2023.
• Proposed Remedial Steps for the Department to Address by December 31, 2023
The Monitoring Team has identified several critical items that have continuously
languished and that are necessary to reduce the risk of harm and the City and Department have
not adequately moved forward through the consultation process with the Monitoring Team.
These steps should be prioritized during the next few months as other remedial relief is being
contemplated. It must be emphasized this is a short-term, interim measure, over the next few
months, to ensure a proper focus and pace for initiatives that have direct bearing on the imminent
risk of harm continue to move forward. The Monitor finds that this group of initiatives are
178
necessary and narrowly tailored to address the Department’s non-compliance with certain
requirements of the Nunez Court Orders as described in detail in this report. A proposed court
order is attached as Appendix E of this report.
• Monitor Reporting in 2023
The Monitoring Team has provided the Court and the Parties with extensive reporting
this year, including six reports (including this instant report) and two substantive letters during
the first six months of 2023. The Monitoring Team will also file a status update with the Court
on August 7, 2023 in advance of the August 10, 2023 Court Conference. Following the
conference, the Monitoring Team recommends the Monitoring Team submit two status letters to
the Court on October 10, 2023, and November 16, 2023, that apprise the Court and the Parties of
the Department’s efforts to address the specifically enumerated remedial relief outlined in the
proposed court order in Appendix E. As for the production of the next Monitor’s Report, the
Monitoring Team respectfully requests it file its next report on December 21, 2023. A four-
month period following the August 10, 2023 Court Conference is necessary to provide sufficient
time for the Department to undertake new action and for the Monitoring Team to collect,
analyze, and interpret the information and data and then report on those efforts. Together, the
status letters and report will ensure that the Parties and the Court still receive frequent and timely
reports and provides more reports than contemplated by the Nunez Court Order (which, at most,
would have provided for three reports this year). As has been the practice, the Monitoring Team
will not hesitate to file an interim report if required by the circumstances. The Monitoring
Team’s recommended reporting schedule is incorporated in the proposed court order in
Appendix E.
179
APPENDIX A:
DATA
180
Annual UOF Number and Average Monthly Rate
The following pages provide systemwide and facility-based data on key outcomes. These
are discussed in the Security, Violence, and Use of Force section of this report.
Systemwide Number and Rate of UOF,

2016 - May 2023
10000 11.3 12.23 15
8.21
8000 10.34
5.9 8184 10
6000 3.96 4.32 7169 7005
5901 6197 9.13
4000 4780
4652 5
2000 2718
0 0
2016 2017 2018 2019 2020 2021 2022 2023
UOF Rate
RNDC Number and Rate of UOF,

July 2018 - May 2023
28.1
1500 30
20.9 25
1320
1000 1176 13.5 1131 20
12.1 12.5
15
500 667 743 10
8.2
339 5
0 0
Jul-Dec 2018 2019 2020 2021 2022 2023
UOF Rate
181
GRVC Number and Rate of UOF,

2016 - May 2023
2000 17.8 20
16.19 15.22
13.26
1500 15
9.28 1445
1000 6.91 1218 1272 10
6.42 1092 10.7
500 742 5
556 522 442
0 0
2016 2017 2018 2019 2020 2021 2022 2023
UOF Rate
AMKC Number and Rate of UOF,

2016 - May 2023
2500 10.24 10.07 12
7.27 9.13
2000 10
5.19 2280 8
1500
1593 1776 6
1000 3.32
2.42 2.72 4
1154 889
500 813 2
643 662
0 0
2016 2017 2018 2019 2020 2021 2022 2023
UOF Rate
182
UOF Number and Average Monthly Rate – January 2022 to May 2023
Systemwide Use of Force

January 2022 to May 2023
Total #
Months Average/month ADP Rate
UOF
January-June 2022 3241 540.2 5491 9.83
July-December 2022 3764 627.3 5787 10.85
January-May 2023 2718 543.6 5954 9.13
Use of Force at RNDC

Total #
UOF
January-June 2022 653 108.8 727 15.0
July-December 2022 478 79.7 812 9.8
January-May 2023 339 67.8 834 8.2
Use of Force at GRVC

Total #
UOF
January-June 2022 621 103.5 622 16.7
July-December 2022 824 137.3 743 18.5
January-May 2023 442 88.4 829 10.7
Use of Force at AMKC

Total #
UOF
January-June 2022 682 113.7 1975 5.74
July-December 2022 1094 182.3 2073 8.79
January-May 2023 889 177.8 1954 9.13
183
Annual Number and Average Monthly Rate of Stabbing and Slashing
Systemwide Number and Rate of Stabbing/Slashing,

2016 - May 2023
500 0.69 0.8
0.63
400 0.6
420 468 0.48
300
0.22 0.4
200 0.14 0.12 0.14
0.09
100 0.2
120 144
121
159 131 95
0 0
2016 2017 2018 2019 2020 2021 2022 2023
Number Rate
RNDC Number and Rate of Stabbing/Slashing,

July 2018 - May 2023
150 1.41 1.5
1.16
100 138 1
107
0.43
50 0.5 0.5
0.23 0.24
10 21
0 13 15 0
Jul-Dec 2018 2019 2020 2021 2022 2023
Number Rate
GRVC Number and Rate of Stabbing/Slashing,

2016 - May 2023
200 2.5
1.92
150 2
1.04 157 1.5

100 1.01
0.56 1
0.15 0.12 0.14 0.3 87
50 0.5
12 10 11 42
42
0 24 0
2016 2017 2018 2019 2020 2021 2022 2023
Number Rate
184
AMKC Number and Rate of Stabbing/Slashing,

2016 - May 2023
120 1.5
100
80 1
60 92 98 0.53
0.21 0.4 0.4
40 0.1 0.1 0.07 0.1 52 0.5
20 33
27 25 17 22
0 0
2016 2017 2018 2019 2020 2021 2022 2023
Number Rate
185
Number and Rate of Stabbing and Slashing from January 2022 to May 2023
Systemwide Stabbings/Slashings
Months Total # S/S Average/month ADP Rate
January-June 2022 254 42.3 5491 0.77
July-December 2022 214 35.7 5787 0.62
January-May 2023 144 28.8 5954 0.48
Stabbings/Slashings at RNDC
January-June 2022 70 11.7 727 1.6
July-December 2022 37 6.2 812 0.76
January-May 2023 21 4.2 834 0.50
Stabbing/Sashing at GRVC
January-June 2022 58 9.7 622 1.55
July-December 2022 99 16.5 743 2.22
January-May 2023 42 8.4 829 1.01
Stabbing/Sashing at AMKC
January-June 2022 49 8.2 1975 0.41
July-December 2022 49 8.2 2073 0.39
January-May 2023 52 10.4 1954 0.53
186
Annual Number and Average Monthly Rate of Fights
Systemwide Number and Rate of Fights,

2016 - May 2023
8.54 9.28
8000 8.62 10
6.2 6.93 8.05
6000 5.11 5.35 8
6204 6
4000 6149 5835
6251 4659
6006 5921 4
2000 2396 2
0 0
2016 2017 2018 2019 2020 2021 2022 2023
Number Rate
RNDC Number and Rate of Fights,

July 2018 - May 2023
1500 21.77 21.35 25
20
1000 1199 11.22 1158 11.8 15
906 9.82
10
500 699 7
512 5
292
0 0
Jul-Dec 2018 2019 2020 2021 2022 2023
Fights Rate
GRVC Number and Rate of Fights,

2016 - May 2023
800 8.7 10
7.54 6.87 7.39
6.26 8
600
658 605 6
5.5
400 3.323.23 600
572 4
501
200 267 263 2
228
0 0
2016 2017 2018 2019 2020 2021 2022 2023
Fights Rate
187
AMKC Number and Rate of Fights,

2016 - May 2023
2500 15
2000 10.13 8.54
7.63
6.27 6.4 6.59 10
1500 4.91 9.01
1528 1799 1942 1601
1000 1303 1563
1430 5
500 880
0 0
2016 2017 2018 2019 2020 2021 2022 2023
Fights Rate
188
Recent Number and Average Monthly Rate of Fights from

Systemwide Fights
Total #
Fights
January-June 2022 2764 460.7 5491 8.39
July-December 2022 3071 511.8 5787 8.84
January-May 2023 2396 479.2 5954 8.05
Fights at RNDC
Total #
Fights
January-June 2022 455 75.83 727 10.43
July-December 2022 451 75.17 812 9.26
January-May 2023 292 58.4 834 7.0
Fights at GRVC
Total #
Fights
January-June 2022 275 45.8 622 7.37
July-December 2022 330 55.0 743 7.40
January-May 2023 228 45.6 829 5.5
Fights at AMKC
Total #
Fights
January-June 2022 676 112.7 1975 5.70
July-December 2022 925 154.2 2073 7.44
January-May 2023 880 176.0 1954 9.01
189
Number and Average Monthly Rate of Assault on Staff, with and without UOF
Systemwide Number and Rate of Assaults on Staff with UOF

2016 - May 2023
1.67
1200 1.25 1.51 1.8
1.6
1000 0.97
1.18 1.4
0.72 0.78
800 1.2
1
600 0.99 0.8
400 0.6
0.4
200
842 862 978 1109 825 1115 799 296 0.2
0 0
2016 2017 2018 2019 2020 2021 2022 2023
AOS with UOF Rate
Systemwide Number and Rate of Assaults on Staff without UOF

2016 - May 2023
2.26
1600 1.91 2.5
1400
2
1200
1000 1.5
1.22
800
600 1
1.06
400
0.5
200 1042 1515 823 315
0 0
2020 2021 2022 2023
AOS without UOF Rate
**The Department began tracking assaults on staff that did not involve a use of force in 2020. Prior years’ data are not
available.
190
Rapid Review Outcomes
The chart provides an overview of the outcomes of Rapid Reviews from January 1, 2018
to May 30, 2023. The Security, Violence, and Use of Force section of this report explores the
current outcomes and recent regression in the Rapid Review’s functioning, which appears to
have inaccurately reduced the proportion of incidents identified as avoidable and those with
procedural/policy violations.
Rapid Review Outcomes, 2018 to May 2023
Jan-
July-Dec Jan-May
2018 2019 2020 2021 2022 June
2022 2023
2022
Incidents Identified as Avoidable, Unnecessary, or with Procedural Violations
4,257 6,899 6,067 7,972 6,889 3,183 3,706 2,704
Number of
(95% of (97% of (98% of (98% of (98% of (98% of (98% of (99% of
Rapid Reviews
all UOF) all UOF) all UOF) all UOF) all UOF) all UOF) all UOF) all UOF)
965 815 799 1,733 1,135 549 586 324
Avoidable
(23%) (12%) (13%) (22%) (16%) (17%) (16%) (12%)
345
Violation of (11%)
UOF or (July- 1,233 835 515 320 227
Chemical Agent Decemb (16%) (12%) (16%) (9%) (8%)
Policy er 2020
Only)
Procedural 1,644 1,666 1,835 3,829 3,296 1,686 1,610 1,112
Violations 233 (39%) (24%) (30%) (48%) (48%) (53%) (43%) (41%)
Corrective Action Imposed by Staff Member
Number of Staff
with
Recommended 3,595 3,969 2,966 5,748 2,860 1,748 1,112 677
Corrective
Action
233
Procedural errors include a variety of instances in which staff fail to comply with applicable rules or
policies generally relating to operational functions, such as failure to don equipment properly (such as
utilizing personal protective equipment), failure to secure cell doors, control rooms, or “bubbles,” and/or
the failure to apply restraints correctly.
191
Use of Force Involving Unmanned Posts
The table below provides the number and proportion of uses of force involving
“unmanned posts” as identified by the Department during three time periods (January-June 2022,
July-December 2022 and January-May 2023). These incidents involve posts to which no staff
member was assigned and instances where the assigned officer left their post without being
relieved (collectively “unmanned posts”). The first two columns list the number of uses of force
involving unmanned posts and the proportion of all uses of force that this number represents. The
third and fourth columns identify the number and proportion of uses of force that involved
unmanned posts and were avoidable (as identified by the Department) specifically due to the
lack of staff on post. In other words, had a staff member been present, these incidents likely
could have been avoided. While the number of incidents involving an unmanned post were
relatively small (approximately 4% of all uses of force in both 2022 and January-May 2023), the
Department found that over half of these incidents could have been avoided had staff been
present. The problem appears to be particularly pronounced at AMKC.
Uses of Force involving Unmanned Posts: January-June 2022

# of UOF Incidents
% of Total UOF
that UOF incidents
# of Total UOF % of Total UOF Incidents involving
involving
Facility Incidents involving Incidents involving Unmanned Posts
Unmanned Posts
Unmanned Posts Unmanned Posts 234 &
&
Were Avoidable
Were Avoidable
AMKC 48 1.48% 39 81.25%
EMTC 22 0.68% 10 45.45%
GRVC 13 0.40% 6 46.15%
NIC 2 0.06% 1 50.00%
OBCC 19 0.59% 7 36.84%
RMSC 6 0.19% 2 33.33%
RNDC 40 1.23% 22 55.00%
VCBC 1 0.03% 1 100.00%
TOTAL 151 4.66% 88 58.28%
234
There were 3,240 total actual uses of force in January-June 2022. This number does not include
alleged uses of force because the Department does not provide avoidable reasons for alleged uses of
force.
192
Uses of Force involving Unmanned Posts: July-December 2022

# of UOF Incidents
% of Total UOF
that UOF incidents
involving
Unmanned Posts
&
Were Avoidable
Were Avoidable
AMKC 51 1.35% 33 64.71%
EMTC 24 0.64% 12 50.00%
GRVC 35 0.93% 13 37.14%
NIC 4 0.11% 2 50.00%
RMSC 32 0.85% 15 46.88%
RNDC 10 0.27% 4 40.00%
VCBC 3 0.08% 1 33.33%
TOTAL 159 4.22% 80 50.31%
Uses of Force involving Unmanned Posts: January-May 2023

# of UOF Incidents
% of Total UOF
that UOF incidents
involving
Unmanned Posts
&
Were Avoidable
Were Avoidable
AMKC 42 1.54% 26 61.90%
EMTC 16 0.59% 9 56.25%
GRVC 17 0.63% 7 41.18%
NIC 1 0.04% 0 0.00%
RMSC 13 0.48% 4 30.77%
RNDC 7 0.26% 3 42.86%
VCBC 0 0.00% 0 -
TOTAL 96 3.53% 49 51.04%
235
There were 3,765 total actual uses of force in July-December 2022. This number does not include
force.
236
There were 2,719 total actual uses of force in January-May 2023. This number does not include
force.
193
Cell Door Installation
The Action Plan requires the installation of a total of 950 new cell doors by July 31, 2023
at RNDC and AMKC in order to strengthen the security hardware of the jails. 237 Given AMKC’s
imminent closure, the Department has focused on the installation of cell doors as RNDC. A
discussion regarding the funds allocated for this project, the process for procuring cell doors, and
installation of cell doors in the Department was included in the Monitor’s October 28, 2022
Report at pgs. 74 to 77. It continues to appear that the City and Department have taken all
available steps to maximize the procurement of new cell doors and have taken the necessary
steps to complete the project as efficiently as possible.
As shown in the table below, a total of 900 new cell doors were installed at RNDC
between July 2019 and May 11, 2023. The pace of installation accelerated significantly in 2022,
when 300 new cell doors were installed and another 250 were installed in the first five months of
2023.
RNDC Cell Door Installation—Completed
Date Installation Completed Number Installed
July to December 2019 50
January to December 2020 100
January to May 11, 2023 250

Total Doors Installed 900
237
As required by the Action Plan, § A, ¶ 1(c); § D, ¶ 5.
194
Number of ADWs and Captains

The two tables below identify the number and assignment of ADWs and Captains at
specific points in time from July 18, 2020 to May 20, 2023. The Leadership, Supervision, and
Training section of the report explores this data further.
Number of ADWs &
Assignments in the Department 238
# of ADWs # of ADWs # of ADWs # of ADWs # of ADWs # of ADWs # of ADWs
Facility As of July 18, As of Jan. 2, As of June As of Jan. 1, As of June As of Dec. 31, As of May 20,
2020 2021 26, 2021 2022 18, 2022 2022 2023
AMKC 9 21 13 12 9 12 16
EMTC 239 0 0 0 0 0 8 9
GMDC 240 0 0 0 0 0 0 5
GRVC 6 10 11 9 8 12 12
MDC 241 6 2 1 1 0 1 0
NIC 6 8 8 5 7 8 9
OBCC 242 6 8 8 14 7 0 0
RMSC 5 6 6 5 4 5 5
RNDC 7 15 15 10 7 12 10
VCBC 4 6 5 5 4 5 6
Court Commands
(BKDC, BXDC, 3 4 3 3 3 3 2
QDC)
Total # of ADWs
in Facilities & 52 80 70 64 49 66 74
Court Commands
Total # of ADWs
Available 55 95 88 80 67 82 90
Department-wide
% of ADWs in
Facilities & Court 79% 84% 80% 80% 73% 80% 82%
Commands
The specific post assignments of ADWs within the Facility is not available so this data simply
238
demonstrates the number of ADWs assigned per facility.

EMTC has been closed and opened in these Monitoring Periods. Until late 2022, staff that work at
239
EMTC were technically assigned to AMKC.

240
The Department reports that staff were transferred to GMDC as part of an administrative effort to get
an accurate count of staff available to work at each facility. Any uniformed staff member on extended
leave (military, FMLA, etc.) as well as any staff out sick more than 30 days was administratively
transferred to GMDC for that purpose.
241
MDC was utilized in a limited capacity at the end of the Twelfth Monitoring Period and was closed by
June 2021. The staff currently assigned to MDC are in fact assigned to the Manhattan Courts (Criminal,
Supreme, and Family).
242
OBCC was closed by July 2022. Staff were then reassigned to other commands.
195
Number of Captains &

Assignments in the Department 243
# of Captains # of Captains # of Captains # of Captains # of Captains # of Captains # of Captains
Facility As of July 18, As of Jan. 2, As of June As of Jan. 1, As of June As of Dec. 31, As of May 20,
2020 2021 26, 2021 2022 18, 2022 2022 2023
AMKC 91 111 97 87 81 80 67
EMTC 244 0 0 0 0 0 38 39
GMDC 245 0 0 0 0 0 0 45
GRVC 75 72 86 86 81 90 66
MDC 246 72 39 15 12 11 11 1
NIC 51 45 45 56 45 50 45
OBCC 247 85 81 78 77 38 7 7
RMSC 51 50 49 36 34 31 27
RNDC 58 56 60 63 70 70 66
VCBC 27 25 27 25 23 22 22
Court Commands
(BKDC, BXDC, 39 37 35 32 33 28 26
QDC)
Total # of Captains
in Facilities and 558 523 499 474 416 427 411
Court Commands
Total # of Captains
Available 810 765 751 670 607 573 553
Department-wide
% of Captains in
Facilities and Court 69% 68% 66% 71% 69% 75% 74%
Commands
243
The specific post assignments of Captains within the Facility is not available so this data demonstrates
the number of Captains assigned per facility.
EMTC has been closed and opened in these Monitoring Periods. Until late 2022, staff that work at
244
EMTC were technically assigned to AMKC.

245
The Department reports that staff were transferred to GMDC as part of an administrative effort to get
an accurate count of staff available to work at each facility. Any uniformed staff member on extended
leave (military, FMLA, etc.) as well as any staff out sick more than 30 days was administratively
transferred to GMDC for that purpose.
246
MDC was utilized in a limited capacity at the end of the Twelfth Monitoring Period and was closed by
June 2021. The staff currently assigned to MDC are in fact assigned to the Manhattan Courts (Criminal,
Supreme, and Family).
247
OBCC was closed by July 2022. Staff were then reassigned to other commands. Due to a locker room
shortage at other facilities, some staff use the locker room at OBCC. DOC reports that these 7 Captains
assigned to OBCC are on medically monitored status and are assigned to OBCC to monitor the staff
locker room.
196
Status of UOF Investigations
The table below provides, as of June 15, 2023, the investigation status of all UOF
incidents that occurred between January 2018 and May 2023. 248
Investigation Status of UOF Incidents Occurring Between January 2018 and May 2023
as of June 15, 2023
Jan. to May
2023
Incident Date 2018 2019 2020 2021 2022
(Partial 16th
MP)
Total UOF 6,302 7,494 6,402 8,422 7,231 2,779

Incidents 249
Pending 0 0% 0 0% 0 0% 0 0% 1 <1% 388 14%

Intake Invest.
Pending Full 0 0% 0 0% 0 0% 0 0% 51 <1% 201 7%

ID Invest.
Total Closed 6,302 100% 7,494 100% 6,402 100% 8,422 100% 7,179 99% 2,190 79%
Invest.
248
All investigations of incidents that occurred prior to 2018 have been closed.
249
Incidents are categorized by the date they occurred, or date they were alleged to have occurred,
therefore these numbers fluctuate very slightly across Monitoring Periods as allegations may be made
many months after they were alleged to have occurred and totals are updated later.
197
Outcome of Intake Investigations
Intake Investigations can be closed with no action, by referring the case for further
investigation via a Full ID investigation, or by referring the case for some type of action (e.g.,
MOC, PDR, Re-Training, Facility Referral). With respect to cases closed with no action, in
some, the violation identified by ID had already been identified by the Facility via Rapid Review
and ID determined that the recommended action by the Rapid Review was sufficient to address
the violation. Therefore, “no action” cases are better understood as cases in which ID took no
action. 250 The table below identifies the outcome of the Intake Investigations, as of May 31,
2023, for incidents that occurred February 3, 2021 (the inception of the Intake Squad) to April
30, 2023.
As discussed in the April 3, 2023 Report, and demonstrated in the chart below, the
proportion of incidents with certain outcomes changed sharply during the 15th Monitoring
Period, compared to all prior Monitoring Periods since the inception of the Intake Squad. More
specifically, significantly more cases were closed with no action (56% during the 15th
Monitoring Period, compared to an average of 42% in prior Monitoring Periods), and
significantly fewer cases were referred for Full ID Investigations (only 3% in the 15th Monitoring
period, compared to an average of 15% in prior Monitoring Periods). Thus far in 2023, case
outcomes have yet to return to their prior patterns. These issues are discussed in more detail in
the Staff Accountability – Identifying and Addressing Misconduct section of the report.
250
Cases that close with no action may have been addressed by the Facility through Rapid Reviews. ID
analyzed almost 1,000 Intake Investigations closed with no action this Monitoring Period and determined
that the facilities took action in 46% of them, including 5003 counseling, verbal counseling, corrective
interviews, or Command Disciplines.
198
Outcome of Intake Investigations 251

as of May 31, 2023 252
Feb. 3 253 July to Jan. to July to Jan. to July to Jan. to
to June Dec. June Dec. June Dec. Apr.
Incident Date 2020 2020 2021 2021 2022 2022 2023
(10th (11th (12th (13th (14th (15th (Partial
MP) MP) MP) MP) MP) MP) 16th MP)
Pending Intake
0 0 0 0 0 0 90
Investigation
Closed Intake
2,492 3,272 4,468 3,916 3,349 3,883 2,098
Investigation
1,060 1,279 1,386 947 1,249 2,183 1,018
No Action
43% 39% 31% 24% 37% 56% 49%
47 28 48 36 22 60 44
MOC
2% 1% 1% 1% 1% 2% 2%
6 2 0 0 1 3 1
PDR
<1% <1% 0% 0% <1% <1% <1%
148 226 342 91 35 38 40
Re-Training
6% 7% 8% 2% 1% 1% 2%
Facility 820 1,159 1,903 2,208 1,641 1,464 602
Referrals 33% 35% 43% 56% 49% 38% 29%
Command 5 2 64
Discipline 254 <1% <1% 3%
Referred for 411 567 781 634 360 110 149
Full ID 12% 17% 17% 16% 11% 3% 7%
Data Entry
36 22 180
Errors 255
Total Intake
2,492 3,272 4,468 3,916 3,349 3,883 2,188
Investigations
251
For the purpose of this chart, the results only identify the highest level of recommended action for each
investigation. For example, while a case may be closed with an MOC and a Facility Referral, the result of
the investigation will be classified as “Closed with an MOC” in the chart below.
252
Other investigation data is this report is reported as of June 15, 2023 while the Intake Investigation
data is also reported as of May 31, 2023 because the data is maintained in two different trackers that were
produced on two different dates. The number of pending Intake cases therefore varies between data
provided “as of June 15, 2023” and “as of May 31, 2023,” depending on which tracker was utilized to
develop the necessary data.
253
Incidents beginning February 3, 2020 received Intake Investigations, so those incidents from the early
part of the Tenth Monitoring Period are not included in this data.
254
For incidents occurring in 2020-2021, command disciplines were included in the “Facility Referrals”
row as command disciplines are handled by the facilities. This data was entered into a new row beginning
in 2022.
255
These investigations had data entry errors in the Intake Squad Tracker. The Monitoring Team is unable
to determine the outcome for these cases.
199
Status of Investigations
The table below depicts the findings of Intake Investigations that were closed as of May
31, 2023 and were not referred for a Full ID Investigation. Intake Investigation findings included
a statement of whether the incident was “unnecessary,” “excessive,” and “avoidable.” 256 Given
the Monitoring Team’s concern about the decline in the detection of and accountability for
misconduct by Intake Investigations discussed in the Monitor’s April 3, 2023 and April 24, 2023
Reports, changes in the percentage identified as excessive, unnecessary or avoidable are also
viewed with skepticism and concern.
Investigations Status
As of May 31, 2023
Feb. 3 257 July to Jan. to July to Jan. to July to
Jan. to
to June Dec. June Dec. June Dec.
Apr. 2023
Incident Date 2020 2020 2021 2021 2022 2022
(Partial
(10th (11th (12th (13th (14th (15th
16th MP)
MP) MP) MP) MP) MP) MP)
Closed Intake
2,492 3,272 4,468 3,916 3,349 3,883 2,098
Investigations
Referred for Full ID 411 567 781 634 360 110 149
Investigations Closed
2,081 2,700 3,687 3,285 2,989 3,773 1,949
at Intake
Findings of Investigations Closed at Intake
Investigations Closed
2,081 2,700 3,687 3,285 2,989 3,773 1,949
at Intake
Excessive, and/or
477 734 737 531 543 268
Unnecessary, and/or 180 (9%)
(18%) (20%) (22%) (18%) (14%) (14%)
Avoidable
Chemical Agent 163 260 324 287 245
164 (8%) 146 (7%)
Violation (6%) (7%) (10%) (10%) (6%)
256
The Department and the Monitoring Team have not finalized an agreed upon definition of these
categories. The definition of these findings and the development of corresponding data is complex,
especially because it requires quantifying subjective information where even slight factual variations can
impact an incident’s categorization. A concrete, shared understanding of what these categories are
intended to capture is necessary to ensure consistent assessment across the board. While efforts were
made in summer 2021 to finalize common definitions, they were never finalized, and has since
languished. The effort has not been reinvigorated given the focus on higher priority items this year. This
categorization process has also not been expanded to Full ID Investigations.
257
Incidents beginning February 3, 2020 received Intake Investigations, so those incidents from the early
part of the Tenth Monitoring Period are not included in this data.
200
Staff Suspensions
The following table identifies suspensions from January 2020 to May 2023 and discussed
in more detail in the Security, Violence, and Use of Force and Staff Accountability – Identifying
and Addressing Misconduct sections of the report.
Staff Suspensions 258

Jan. July Jan. July Jan. July Jan.

to to Total to to Total to to Total to Total
Reason
June Dec. 2020 June Dec. 2021 Jun Dec. 2022 May. 2023
2020 2020 2021 2021 2022 2022 2023
Abuse of
27 12 39 48 90 138 162 143 305 60 60
Sick Leave
Conduct
32 60 92 44 84 128 44 55 99 65 65
Unbecoming
Use of Force 36 42 78 52 30 82 36 30 66 59 59
AWOL 0 0 0 0 165 165 34 63 97 16 16
Arrest 21 39 60 38 32 70 19 13 32 7 7
Inefficient
25 19 44 24 5 29 16 23 39 17 17
Performance
Electronic
4 14 18 2 2 4 5 5 10 4 4
Device
NPA 5 5 10 3 3 6 8 9 17 10 10
Other 2 4 6 1 3 4 3 8 11 6 6
Contraband 4 3 7 4 1 5 0 0 0 3 3
Erroneous
5 0 5 0 0 0 2 0 2 0 0
Discharge
Abandoned
0 0 0 0 0 0 0 1 1 1 1
Post
Total 161 198 359 216 415 631 329 350 679 248 248
258
The Department utilizes broad categories for tracking the reason a staff member was suspended. In
some instances, the misconduct that resulted in the suspension can fit numerous categories
interchangeably. The selection of the category depends on the judgment of the individual manually
entering and tracking this information for the Department. For example, an MOS may be suspended for
leaving a door unsecured that later resulted in a Use of Force. This suspension could be tracked under
“Inefficient performance of duty” or “Use of Force.” Similarly, an MOS may display unprofessional
behavior prior to a Use of Force and can be suspended for “Conduct Unbecoming” or “Use of Force.”
While the Monitoring Team has not conducted an extensive assessment of every suspension, these
examples appear infrequent, and most suspensions appear to be appropriately categorized. More
importantly, the suspensions are effectuated.
201
Status of Disciplinary Cases
The table below presents the status of all cases referred for formal discipline (by incident
date). This data illustrates that about 170 cases with incident dates from over a year ago (i.e.,
2021 or earlier) remain pending, and thus the opportunity for timely discipline has clearly been
lost. This data is discussed in more detail in the Staff Accountability – Identifying and
Addressing Misconduct sections of the report.
Status of Disciplinary Cases & Pending Investigations by Date of Incident

As of May 2023
Jan. to
2016 2017 2018 2019 2020 2021 2022 May. Total
2023
Total Individual Cases 471 620 784 1027 695 713 433 66 4,809
Closed
470 99.8% 614 99% 772 98% 1007 98% 683 98% 594 83% 222 51% 7 11% 4,369 91%
Disciplinary Cases
Pending
1 0.2% 6 1% 12 2% 20 2% 12 2% 119 17% 211 49% 59 89% 440 9%
Disciplinary Cases
Unique UOF Incidents 191 292 371 456 604 448 561 317 55
Pending UoF
0 0 0 0 0 1 51 819 871
Investigations
Total Uses of Force 4,652 4,780 5,901 7,169 6,197 8,184 7,005 2,718 46,606
202
Command Discipline
The table below summarizes the results of all CDs referred from Rapid Reviews since
2019, based on an analysis conducted by NCU. This data is discussed in more detail in the Staff
Accountability – Identifying and Addressing Misconduct sections of the report.
Status and Outcome of Command Disciplines Recommended by Rapid Reviews

As of March 2023 NCU Report
Dismissed at
Resulted Resulted
Month of Still Hearing or Never
Total # of CDs in 1-5 Resulted Resulted in in
Incident/Rapid Pending in Closed Entered
Recommended Days in MOC Reprimand Corrective
Review CMS Administratively into CMS
Deducted Interview
in CMS
Jan.-June 2019
757 5 1% 390 52% 50 7% 66 9% 42 6% 180 24% 15 2%
(8th MP)
July-Dec. 2029
878 2 0% 489 56% 72 8% 90 10% 11 1% 180 21% 26 3%
(9th MP)
Jan.-June 2020
492 3 1% 263 53% 30 6% 37 8% 10 2% 110 22% 39 8%
(10th MP)
July-Dec. 2020
948 12 1% 410 43% 78 8% 89 9% 22 2% 289 30% 43 5%
(11th MP)
Jan.-June 2021
1229 41 3% 511 42% 131 11% 150 12% 15 1% 318 26% 65 5%
(12th MP)
July-Dec. 2021
1126 24 2% 283 25% 150 13% 120 11% 23 2% 426 38% 97 9%
(13th MP)
Jan.-June 2022
907 23 3% 291 32% 59 7% 134 15% 30 3% 286 32% 84 9%
(14th MP)
July-Dec. 2022
1216 60 5% 450 37% 69 6% 183 15% 46 4% 303 25% 105 9%
(15th MP)
Jan.-Mar. 2023
546 113 21% 260 48% 26 5% 22 4% 18 3% 78 14% 22 4%
(Partial 16th MP)
Jan-23 181 49 27% 71 39% 5 3% 10 6% 4 2% 33 18% 9 5%
Feb-23 142 12 8% 78 55% 9 6% 9 6% 6 4% 20 14% 7 5%
Mar-23 223 52 23% 111 50% 12 5% 3 1% 8 4% 25 11% 6 3%
*CDs pending more than a year are not tracked in the CD reports analyzed for this chart and therefore may still appear pending although it is likely they
have since been dismissed.
203
Unmanned Posts & Triple Tours
The table below provides the monthly total and daily average from January 2021 to May
2023 of the total uniform staff headcount, unmanned posts (a post in which a staff member is not
assigned), and triple tours. The total number and daily average of unmanned posts and triple
tours have both decreased since January 2022 and from their prior peak in 2021. On average,
there were 37 fewer unstaffed posts per day in May 2023 compared to the previous peak in
January 2022. There were also 25 fewer triple tours on average in May 2023 compared to the
previous peak in August 2021. On the other hand, the number of unstaffed posts per day has
been steadily rising in 2023, and there were 9 more unstaffed posts per day in May 2023
compared to January 2023.
Average Total
Average Average Total Triple
Unmanned Unmanned
Month Headcount Triple Tours Tours
Posts Posts
per Day per Day 259 per Month
per Day per Month
January 2021 8,872 0 6
February 2021 8,835 3 91
March 2021 8,777 5 169
April 2021 8,691 4 118
May 2021 8,576 4 109
June 2021 8,475 4 108
July 2021 8,355 15 470
August 2021 8,459 25 764
September 2021 8,335 22 659
October 2021 8,204 6 175
November 2021 8,089 6 174
December 2021 7,778 23 706
January 2022 7,708 59 1825 24 756
February 2022 7,547 23 638 3 90
March 2022 7,457 29 888 1 41
259
This column contains data for the number of staff who worked over 3.75 hours of their third tour. This
chart does not contain data for staff who have worked 3.75 hours or less of their third tour.
204
Average Total
Average Average Total Triple
Unmanned Unmanned
Month Headcount Triple Tours Tours
Posts Posts
per Day per Day 259 per Month
per Day per Month
April 2022 7,353 13 385 0 3
May 2022 7,233 31 972 1 33
June 2022 7,150 27 815 2 67
July 2022 7,138 20 615 2 58
August 2022 7,068 24 735 2 50
September 2022 6,994 22 649 4 105
October 2022 6,905 26 629 2 63
November 2022 6,837 16 486 2 50
December 2022 6,777 13 395 4 115
January 2023 6,700 13 391 1 38
February 2023 6,632 15 419 0 8
March 2023 6,661 17 525 0 7
April 2023 6,590 16 491 0 11
May 2023 6,516 22 671 0 7
205
Sick Leave, Medically Monitored/Restricted, and AWOL
The tables below provide the monthly average from January 1, 2019 to May 31, 2023 of
the total staff headcount, the average number of staff out sick, the average number of staff on
medically monitored/restricted duty, and the average number of staff who were AWOL. 260 The
Monitoring Team’s assessment of this data is included in the Uniform Staffing Practices section
of this report.
2019
Average Average Average Average Average Average
Head-
Month Daily Daily % Daily Daily % Daily Daily %
count
Sick Sick MMR3 MMR3 AWOL AWOL
January 2019 10577 621 5.87% 459 4.34%
February 2019 10482 616 5.88% 457 4.36%
March 2019 10425 615 5.90% 441 4.23%
April 2019 10128 590 5.83% 466 4.60%
May 2019 10041 544 5.42% 501 4.99%
June 2019 9953 568 5.71% 502 5.04%
July 2019 9859 538 5.46% 496 5.03%
August 2019 10147 555 5.47% 492 4.85%
September 2019 10063 557 5.54% 479 4.76%
October 2019 9980 568 5.69% 473 4.74%
November 2019 9889 571 5.77% 476 4.81%
December 2019 9834 603 6.13% 463 4.71%
2019 Average 10115 579 5.72% 475 4.71%
260
The AWOL data is only available for August 1, 2021-January 26, 2022 and April 2022-May 31, 2023.
206
2020
Head-
count
January 2020 9732 586 6.02% 367 3.77%
February 2020 9625 572 5.94% 388 4.03%
March 2020 9548 1408 14.75% 373 3.91%
April 2020 9481 3059 32.26% 278 2.93%
May 2020 9380 1435 15.30% 375 4.00%
June 2020 9302 807 8.68% 444 4.77%
July 2020 9222 700 7.59% 494 5.36%
August 2020 9183 689 7.50% 548 5.97%
September 2020 9125 694 7.61% 586 6.42%
October 2020 9079 738 8.13% 622 6.85%
November 2020 9004 878 9.75% 546 6.06%
December 2020 8940 1278 14.30% 546 6.11%
2020 Average 9302 1070 11.49% 464 5.02%
2021
Head-
count
January 2021 8872 1393 15.70% 470 5.30%
February 2021 8835 1347 15.25% 589 6.67%
March 2021 8777 1249 14.23% 676 7.70%
April 2021 8691 1412 16.25% 674 7.76%
May 2021 8576 1406 16.39% 674 7.86%
June 2021 8475 1480 17.46% 695 8.20%
July 2021 8355 1488 17.81% 730 8.74%
August 2021 8459 1416 17.27% 767 9.36% 90 1.05%
September 2021 8335 1703 21.07% 744 9.21% 77 0.92%
October 2021 8204 1558 19.46% 782 9.77% 30 0.37%
November 2021 8089 1498 19.08% 816 10.39% 42 0.52%
December 2021 7778 1689 21.79% 775 10.00% 42 0.54%
2021 Average 8454 1470 17.46% 699 8.32% 56 0.68%
207
2022
Head-
count
January 1-26, 2022 7708 2005 26.01% 685 8.89% 42 0.55%
February 2022 7547 1457 19.31% 713 9.45%
March 2022 7457 1402 18.80% 617 8.27%
April 2022 7353 1255 17.07% 626 8.51% 23 0.31%
May 2022 7233 1074 14.85% 634 8.77% 24 0.34%
June 2022 7150 951 13.30% 624 8.73% 16 0.22%
July 2022 7138 875 12.26% 608 8.52% 19 0.26%
August 2022 7068 831 11.76% 559 7.91% 17 0.24%
September 2022 6994 819 11.71% 535 7.65% 6 0.09%
October 2022 6905 798 11.56% 497 7.20% 6 0.09%
November 2022 6837 793 11.60% 476 6.96% 7 0.09%
December 2022 6777 754 11.13% 452 6.67% 7 0.10%
2022 Average 7181 1085 14.95% 586 8.13% 17 0.23%
2023
Average Average Average Average Average
Head- Average
Month Daily % Daily Daily % Daily Daily %
count Daily Sick
Sick MMR3 MMR3 AWOL AWOL
January 2023 6700 692 10.33% 443 6.61% 9 0.13%
February 2023 6632 680 10.25% 421 6.35% 9 0.14%
March 2023 6661 639 9.59% 401 6.02% 11 0.17%
April 2023 6590 595 9.03% 393 5.96% 10 0.15%
May 2023 6516 514 7.89% 403 6.18% 10 0.15%
2023 Average 6620 624 9.42% 412 6.23% 10 0.15%
208
Leadership Appointments – January 2022 to June 2023
The table below identifies the leadership positions that were filled between January 2022
and June 2023, including the date of appointment and the departure date, if applicable. This is
discussed in the Overarching Initiatives Related to Reform section of the Report.
DIVISION/ DATE OF DATE OF
TITLE
BUREAU APPOINTMENT DEPARTURE
Deputy Commissioner IT 9/24/2017 6/1/2023
Chief Of Staff Commissioner’s Office 2/14/2022
Program & Community
Associate Commissioner 3/14/2022
Partnership
Assistant Commissioner Programs 3/14/2022
Assistant Commissioner Program Operations 3/18/2022
Advancement and
Assistant Commissioner 4/7/2022
Enrichment Program
Associate Commissioner Human Resources 4/7/2022 4/1/2023
Deputy Chief Of Staff Commissioner’s Office 4/11/2022
Preparedness and
Resilience
Management Analysis &
Deputy Commissioner 4/18/2022
Planning
Deputy Commissioner Investigation Division 5/9/2022 4/1/2023
Deputy Commissioner Security Operations 5/16/2022
Deputy Commissioner Trials 5/31/2022
Assistant Commissioner AIU 6/16/2022
Assistant Commissioner Human Resources 6/16/2022 4/9/2023
Deputy Commissioner DCPI 7/1/2022 4/14/2023
Associate Commissioner Data Quality & Metrics 7/3/2022
Assistant Commissioner CIB 7/11/2022
Classification &
Population Management
Assistant Commissioner Human Resources 8/8/2022
Executive Director, Intergovernmental &
8/8/2022
Intergovernmental & Policy Policy
Associate Commissioner IT 8/8/2022
Deputy Commissioner/General
Legal Division 8/8/2022
Counsel
Associate Commissioner Trials 8/8/2022
Associate Commissioner Operations 8/22/2022
Data Analytics and
Research
Deputy Commissioner Administration 9/6/2022
Assistant Commissioner Training Academy 9/6/2022 9/17/2022
Assistant Commissioner Operations Research 9/12/2022 6/16/2023
Senior Deputy Commissioner Operations 10/31/2022 2/3/2023
Associate Commissioner Operations 11/9/2022
Deputy Commissioner Training 12/5/2022
Assistant Commissioner Investigations 12/11/2022 3/1/2023
Assistant Commissioner Investigations – PREA 12/19/2022
Acting Deputy Commissioner Human Resources 1/9/2023
209
DIVISION/ DATE OF DATE OF

TITLE
BUREAU APPOINTMENT DEPARTURE
Management Analysis and
Planning
Deputy Commissioner Health Affairs 1/30/2023
Assistant Commissioner Public Information 1/30/2023
Assistant Commissioner Training Academy 1/30/2023
Acting Assistant Commissioner Human Resources 4/1/2023
Assistant Commissioner Security Operations 4/3/2023
Acting Deputy Commissioner Investigations 4/3/2023
Acting Deputy Commissioner IT 4/10/2023
Assistant Commissioner EMTC 4/24/2023
Assistant Commissioner GRVC 4/24/2023
Assistant Commissioner OBCC 4/24/2023
Assistant Commissioner RMSC 4/24/2023
Assistant Commissioner VCBC 4/24/2023
Deputy Commissioner DCPI 5/3/2023
Facilities & Fleet
Administration
Classification &
Population Management
Nunez Manager 6/14/2023
Assistant Commissioner RNDC 6/20/2023
210
APPENDIX B:
IMAGES OF MAY 26, 2023
INCIDENT #1
211
Images of May 26, 2023 Report Incident #1
The images below are related to Incident #1 which involved two uses of force. 1
Picture 1 (First UOF): Prior to the escort, the individuals being escorted were left in a vestibule unrestrained.
An officer appeared to be conducting a commissary distribution through an open door to other persons in
custody outside the vestibule. The A station door was repeatedly opened as well.
1
The Mayor and Commissioner shared this video with the media and it was reported by at least two
outlets. See Dean Moses, EXCLUSIVE| Correction commissioner, Mayor Adams show Rikers Island
security videos in effort to counter federal monitor’s claims of misdeeds, amNY,
https://www.amny.com/police-fire/rikers-island/exclusive-correction-commissioner-mayor-adams-show-
rikers-island-security-videos-in-effort-to-counter-federal-monitors-claims-of-misdeeds/. See also, Marcia
Kramer, CBS2 gets exclusive look at Rikers Island security tapes mentioned in federal monitor's scathing
report on city jail, CBS New York, https://www.cbsnews.com/newyork/news/rikers-island-security-tapes-
federal-monitor-scathing-report-government-eric-adams/.
1
Picture 2 (First UOF): 10 individuals, including the individual involved in the uses of force, were escorted in
an elevator together.
Picture 3 (First UOF): The other individuals were escorted off the elevator, but the individual involved in the
uses of force was left on the elevator alone.
2
Picture 4 (First UOF): A CO entered the elevator and rode it with the person involved in the use of force. The
elevator stopped and a civilian staff entered. The person involved in the uses of force walked towards the door
and the CO extended her arm in front of the doorway, but he pushed past.
Picture 5 (First UOF): Two COs were standing in a hallway near an open breaker gate. The individual
involved in the use of force walked down the hallway towards the already-open breaker gate.
3
Picture 6 (First UOF): The individual walked through the already-open breaker gate.
Picture 7 (First UOF): The person in custody reached a closed doorway in the hallway and tried to open the
locked door. A large number of officers quickly responded and surrounded him.
4
Picture 8 (First UOF): The officers closed in on the individual and he tried to push past. Multiple officers
took him to the ground face first. His face makes contact with the floor during the takedown.
Picture 9 (Second UOF): After the first UOF, the individual was brought to the search area. He had ESU
officers on all sides and was rear cuffed and in leg shackles, both visible in this picture. An ESU Captain was
supervising (in the front).
5
Picture 10 (Second UOF): The individual jerked his knee towards the ESU officer’s helmet as he assisted him
putting on shoes. From the camera angles, it is unclear if he made contact with the helmet.
Picture 11 (Second UOF): Officers took the individual to the ground. It appears they took him down face
first. He was still rear restrained and in leg shackles. The takedown occurred in the area to the right that is not
visible on camera.
6
Picture 12 (Second UOF): The camera operator moved, and the individual was on the ground behind a
partition.
Picture 13 (Second UOF): ESU officers lifted the individual, and he is depicted hitting his head on the plastic
container in the picture above.
7
Picture 14 (Second UOF): ESU officers lifted the individual again and he hit his head on the partition leg.
Spots of blood are visible on the floor below his nose and on his pants.
Picture 15 (Second UOF): The individual then hit his head on the concrete floor and made a pained face.
8
Picture 16 (Second UOF): After the individual has repeatedly hit his head and is in clear pain, multiple ESU
staff continued to hold him against the floor and did not render any aid.
Picture 17 (Second UOF): There is blood on the floor beneath the metal bench and next to the plastic box
where the takedown occurred. ID took photos of this area early the next day, and that red spot is no longer on
the floor. The red spot was cleaned, and the individual’s injury report stated he had lacerations to the face, so
therefore these spots appear to be the individual’s blood.
9
Picture 18 (Second UOF): Staff picked him up by his leg and side.
Picture 19 (Second UOF): Another red spot is visible on the floor near where his head was sitting next to the
partition leg. In the picture above, the red spot is visible by his knee.
10
Picture 20 (Second UOF): Staff toss the individual onto the gurney. They are using so much force that it’s
hard to get a non-blurry picture.
Picture 21 (Second UOF): The individual was thrown face first onto the gurney.
11
Picture 22 (Second UOF): The individual was transported to the clinic, still face first on the gurney. He did
not move since he was placed in this position by staff. Multiple ESU staff continued to hold him down during
their escort. They never rendered aid.
12
APPENDIX C:
MONITOR’S
APRIL 2023 RECOMMENDATIONS
224
Monitoring Team’s April 2023 Recommendations
The chart below provides a comprehensive list of the Monitoring Team’s April 2023 Recommendations.
Recommendations Update
Security Practices
Improved Security Practices: Improved security practices, reducing the use of excessive
and unnecessary force, and the resulting improvement in facility safety is undoubtedly the
most important aspect of advancing the reforms and achieving compliance with the Consent See Security, Violence and UOF Section of Report.
Judgment. It is for this reason that the requirements enumerated in the Action Plan § D.
(Security Practices) must remain a top priority.
Investigations
The Commissioner has selected a Deputy
Deputy Commissioner of ID: Recruit an appropriately qualified, permanent Deputy
Commissioner of ID who is currently in the process
Commissioner of ID.
of vetting.
Two teams have been assigned to conduct
immediate reviews of all incidents to identify cases
for immediate action. ID has also increased
Improve Quality of Investigations: ID, in consultation with the Monitoring Team, must
supervision of Full ID and Intake Investigations,
implement a concrete plan to improve the quality of investigations going forward.
including routine meetings with investigators to
review pending and closed investigations. Finally,
ID leadership reviews all closed cases.
The Department reports that ID has conducted at
Conducting Investigations Without Fear or Favor: investigators and supervisors must be
least three Town Hall meetings with all ID Staff
advised that investigations are to be conducted without fear or favor, that the requirements
regarding their obligations and expectations to
of the Consent Judgment are to be adhered to, and that all staff within ID are encouraged to
conduct timely, thorough and independent
work collaboratively with the Monitoring Team.
investigations.
Improved Training: Improve training curricula for new investigators and for ID refresher The Department has advised the Monitoring Team it
training to ensure they are consistent with the requirements of the Court’s orders and will consult the Monitoring Team on its training
directly address the concerning practices identified in 2022 and 2023. program which is currently under development.
ID initiated a quality assurance program for Intake
Quality Assurance Program: A quality assurance program must be instituted to assess Investigations and Full ID investigations that are
those use of force investigations that are closed with no action. closed without charges. On a weekly basis, a
random selection of 30 intake investigations and 5
225
Full Investigations that meet this criteria are
evaluated. The QA of intake investigations began
with cases closed in November of 2022.
ID, in consultation with the Monitoring Team,
identified XX cases that were closed between July
Re-evaluate Certain 2022 and 2023 Investigations: ID must reevaluate certain 2022 and 1, 2022 and December 31, 2022 that merited re-
2023 investigations where additional scrutiny is merited to ensure the robust identification evaluation. Leadership of the ID Division is in the
of all staff misconduct. ID, in consultation with the Monitoring Team, shall develop process of re-evaluating these cases and providing
appropriate criteria to identify such cases. routine updates to the Monitoring Team. Evaluation
of 2023 cases will occur through the QA process
described above.
Assignment of ID Investigators: The number of ID investigators and supervisors dedicated
to working on UOF investigations must be significantly increased by either: (1) re-assigning
investigators from SIU to ID, and (2) through aggressive recruitment efforts. In particular, See Staff Accountability – Identifying and
to entice candidates to work at the Department, the City will likely need to further increase Addressing Misconduct Section of Report.
the salary and/or benefit package available to investigators given that initial efforts have not
resulted in the number of candidates needed to fully staff ID.
Intake
The Classification Manager has consulted with the
Appoint Dedicated Leadership of Intake Department-Wide: A dedicated leader should
Monitoring Team on potential options to address
be appointed to manage the Department’s intake functions (see pg. 88 of the April 3, 2023
this recommendation, but the Department has not
Monitor’s Report).
provided a formal proposal.
Implementation of ITS to Track Intra/Inter-Facility Transfers: Support the roll-out of
ITS tracking and the Dashboard at all facilities to ensure they are incorporated into practice,
including that each facility have clear procedures and appropriate working space to ensure
staff can accurately enter data into ITS, regardless of competing priorities. As part of this
work, the Department should begin to assess why staff in each facility are not utilizing the
ITS tracking as they have been trained to do. While stating expectations and training staff
See Management of Incarcerated Individuals
are important components of implementation, they are often insufficient unless they are
Section of Report.
informed by an understanding of what gets in the way of meeting the expectations. The
facilities vary in size and intake traffic and experience different obstacles and barriers to
compliance. The Monitoring Team recommends that the Department assess what kind of
operational changes are needed to respond to these barriers and how they may be
implemented to increase compliance within each facility’s intake. This should also include
On-the-Ground Oversight described on page 85 of the April 3, 2023 report.
226
Management of the Quality Assurance Process for New Admissions and Inter/Intra
Facility Intake Data: The Department must identify practical quality assurance strategies,
in consultation with the Monitoring Team, for assessing whether staff are following
established procedures (see pgs. 84- to 87 of the April 3, 2023 Monitor’s Report). Most
recently, the Deputy Commissioner of Operations’ staff has initiated a few procedures
intended to assess compliance with tracking requirements. A Facility Operations Team
consisting of uniformed staff from the Deputy Commissioner of Classification’s office has
been monitoring the operation of the intake units. They are ideally suited to the task
described above. As that work unfolds, the Monitoring Team recommends that formal
protocols are developed that document any findings or recommendations identified by the
See Management of Incarcerated Individuals
team and what is communicated to the facilities, along with the responses received from the
Section of Report.
facilities. Further, the Legal Division has endeavored to collect relevant data. However,
neither effort has been particularly formulaic, and the results of these efforts have not been
compiled in a meaningful way that could establish appropriate proof of practice or be
verified by the Monitoring Team. The Monitoring Team recommends that the Nunez
Compliance Unit (“NCU”) be engaged in collecting and managing the various data and
information that is prepared by the Deputy Commissioner of Operations office and Legal
Division about the various initiatives underway so the information can be consistently and
routinely reviewed. NCU’s specific expertise and dedicated resources are well suited for
this task to obtain the relevant information, analyze it and routinely evaluate and report out
findings.
Additional Reporting by the Department: Given the current state of affairs, the
Monitoring Team recommends that the City and Department file two additional reports on
Complete
the status of intake before the next Monitor’s Report, one on May 17, 2023 and another on
June 16, 2023.
ESU 261
ESU Leadership and Staffing: ESU must be reconstituted to include leadership that
embraces the goals of the Consent Judgment and that directs its staff to manage crises in See Security, Violence and UOF Section of Report.
ways that reduce harm rather than amplify it.
Training ESU Staff: Create and implement the two-day in-service refresher training for See Leadership, Supervision and Training Section of
ESU (and SRT) in consultation with the Monitoring Team. 262 Report.
261
These recommendations apply to the Emergency Services Unit or any unit that may serve the same function, but may utilize a different name.
262
Consultation with the Monitoring Team on this training has already been initiated by the Deputy Commissioner of Training.
227
Revise ESU Screening Policy: Revise Operations Order 24/16 (Special Unit Assignment)
See Security, Violence and UOF Section of Report.
to eliminate the loopholes identified in the April 3, 2023 Monitor’s Report.
Screening Procedures for Assignment of ESU: Improve processes for screening, and the
individuals appointed to conduct said screenings, and ensuring adequate oversight to ensure
that the screenings are appropriate and reliable and are not susceptible to potential
malfeasance
Screening of Staff Assigned to ESU: Screen all current ESU staff (both permanent and
support teams) for suitability of assignment.
Revise ESU CLOs: Relevant ESU’s command level orders related to use of force must be
updated, in consultation with the Monitoring Team.
Supervision
Assistant Commissioners of Operations: On-board the new Assistant Commissioners
See Leadership, Supervision and Training Section of
of Operations as quickly as possible to provide the long-awaited leadership, expertise and
Report.
hands-on/eyes-on supervision that the facilities need to truly begin their culture change.
Deployment of Supervisors: Complete efforts to redeploy supervisors to the facilities and
to ensure their presence throughout evenings and weekends to properly oversee staff
Report.
assignments and to provide much needed on-the-ground coaching and guidance to officers.
Support for Supervisors: Department must make it a high priority for the Deputy Wardens
and Wardens to actively supervise and provide in-service training to these newly promoted
Report.
ADWs to ensure that the quality of the supervision improves.
Facility Leadership: The Assistant Commissioners of Operations must be on-boarded as
quickly as possible to provide the long-awaited leadership, expertise and hands-on/eyes-on
supervision that the facilities need to truly begin their culture change. This mentorship and See Leadership, Supervision and Training Section of
support is acutely necessary starting with the DW, ADW and Captain ranks such that they Report.
can properly motivate, guide and shape the practices of their subordinates. Five Assistant
Commissioners of Operations are scheduled to begin work in April 2023.
Screening/Promotions
Evaluation of Candidates for Promotion: Carefully evaluate candidates for Deputy
Warden to determine if a candidate without one-year jail experience is appropriate for
promotion. While there may be candidates for which this exception is appropriate (e.g., the See Leadership, Supervision and Training Section of
Executive Director of the Classification Unit), supervision experience in the jails is a key Report.
component in understanding and assessing the facility operations and practices that
underpin this work.
Revise Screening Policy: The erroneous removal of the provision regarding the ranking of See Leadership, Supervision and Training Section of
outstanding candidates should be reinstated in the Department’s screening policy. Report.
228
Scrutinize ADWs not Recommended for Promotion: The Department should carefully The Department reported that the Commissioner is
scrutinize the 12 recently promoted staff with concerning screening information, provide satisfied with his choices. One ADW has been
necessary support to these staff while they are in their 1-year probationary period, and demoted. The other 11 will be monitored and
closely review and assess any misconduct (use of force or otherwise) before their evaluated during their probationary period for
probationary period expires. conduct that suggests a lack of qualification.
Revise Screening Policy: The Monitoring Team recommends that the Department improve
the rigor of its screening procedures and revise its Pre-Promotional Screening policy, in See Leadership, Supervision and Training Section of
consultation with the Monitoring Team, to address the concerns identified in the April 3, Report.
2023 Monitor’s Report.
Discipline
Eliminate the Backlog of UOF Disciplinary Cases Pending 1 Year or More from the
Incident Date: The Monitoring Team recommends that all pending use of force disciplinary See Staff Accountability – Identifying and
cases that occurred between January 1, 2021 and June 30, 2022 must be closed by August Addressing Misconduct Section of Report.
15, 2023.
Evaluate the Use of Lower-Level Sanctions & Expungement: The Monitoring Team
recommends that the Trials Division revise its protocols, in consultation with the See Staff Accountability – Identifying and
Monitoring Team, to limit the circumstances in which low-level sanctions and expungement Addressing Misconduct Section of Report.
may be utilized, to be implemented no later than July 30, 2023.
Revise Command Discipline Procedures: Expanded use of Command Disciplines
necessitates vigilance by the Department to ensure this process has integrity and is not
abused. This includes appropriate oversight of the revised Command Discipline process to
ensure cases are processed and not dismissed due to procedural errors. Further, oversight of
the outcome of CDs is necessary to ensure that they reach appropriate outcomes and do not See Staff Accountability – Identifying and
simply default to the lowest level sanction (despite evidence to the contrary). Appropriate Addressing Misconduct Section of Report.
mechanisms must be in place to ensure that cases that require formal discipline are referred.
There must be sufficient oversight to ensure that if a staff member has exceeded the number
of allowable CDs in a given time period that the cases are referred for MOCs. Finally, an
appropriate tracking system for CD appeals must also be developed by the Legal Division.
Resolution of Medical Incompetence Cases: The Trials Division must resolve the medical
incompetence cases brought between October 1, 2022 and March 31, 2023 for active staff See Uniform Staffing Practices Section of Report.
and that are still pending by August 31, 2023.
Staffing for Trials Division: The City and Department must continue to vigorously recruit
necessary staff for the Trials Division. While progress has been made, the number of staff is See Staff Accountability – Identifying and
still not sufficient to manage the caseload and process cases in a timely manner. As part of Addressing Misconduct Section of Report.
this effort, the Monitoring Team also continues to strongly recommend that the City and
229
Department afford staffing in the Trials Division an opportunity to work remotely. Even if
permitted for only a few days per week, this benefit would support the overall recruitment
efforts of qualified candidates.
OATH reported that it conducted a staffing analysis
and found it currently has sufficient staff to ensure
Staffing for OATH: OATH must continue to evaluate its staffing needs to determine the timely resolution of disciplinary matters
whether additional staff are necessary to support the timely resolution of disciplinary pursuant to the Third Remedial Order and Action
matters. Plan. OATH reported that its Trial Division’s
overall capacity will increase in July 2023 with the
onboarding of a new ALJ and three new law clerks.
Management of Uniform Staffing
Finalization of Sick/Leave and Absence Control Policies: Revise and implement the Sick
See Uniform Staffing Practices Section of Report.
Leave and Absence Control by May 15, 2023.
Finalization of Medically Modified/Restricted Policies: Revise and implement Medically
See Uniform Staffing Practices Section of Report.
Modified/Restricted procedures by June 30, 2023.
Management of SMART Unit: Recruit and hire a manager of the SMART unit. See Uniform Staffing Practices Section of Report.
Overall Hiring of Staff
Overall Recruitment for Department: The Monitoring Team continues to strongly
encourage the Department to develop a remote work option, even for a few days per week, See Overarching Initiatives Related to Reform
for staff with amenable job responsibilities as it would greatly enhance the Department’s Section of Report
ability to attract qualified candidates.
Management of Nunez Matters
Department Coordination with Nunez Monitor: Dedicate additional resources to See Department’s Management Structure and
supporting the work of the Monitoring Team to ensure information is provided in a timely Management of the Nunez Court Orders Section of
manner. Report.
Management of Nunez Matters: Identify an individual to manage the Department’s
overall compliance efforts with the Court’s orders. An incredibly unique skill set is
required. This individual must have appropriate and recognized authority, a command of the
Department’s entire operation, and a nuanced understanding of the requirements in the See Department’s Management Structure and
various Court orders in this matter. Their core tasks are to set priorities and resolve conflicts Management of the Nunez Court Orders Section of
within those priorities that may demand the same resources; anticipate potential barriers to Report.
implementation; communicate proactively with the Monitoring Team regarding upcoming
initiatives, progress and obstacles encountered; and respond to the Monitoring Team’s
feedback and ensure it is incorporated into practice.
EISS
230
E.I.S.S. Access to Information: E.I.S.S. staff must have timely access to the relevant
information on staff backgrounds so that they can obtain a complete understanding of the
staff’s practices prior to placement in E.I.S.S., and to ensure that the monitoring plans are
tailored to address the underlying conduct that may have resulted in the staff’s placement on See Leadership, Supervision and Training Section of
probation or any issues raised during the screening of newly promoted staff. The Report.
Monitoring Team recommends information is shared with E.I.S.S. as efficiently as
possible—including materials which identify concerns raised during the screening process
for newly promoted supervisors.
Staffing for E.I.S.S.: The unit currently has three open positions for civilian employees, but
progress towards filling these roles has been on pause as the ADW positions were filled. See Leadership, Supervision and Training Section of
The Monitoring Team strongly recommends that recruiting additional civilians to support Report.
this work should resume given the current strain on uniformed resources.
231
APPENDIX D:
TRANSCRIPT OF NUNEZ VIDEO
232
Transcription of Video re: DOC’S Bold Path Forward and Introduction to Nunez
Hello. My name is [Redacted] and I am the General Counsel of the New York City
Department of Corrections. I have been asked to speak to you to introduce the training program
that you are headed into and, in specific, to talk about the Nunez Decree and what flows from it.
The Nunez suit was filed in 2011 by a group of incarcerated individuals, in which the name
plaintiff was Mr. Nunez, against the Department alleging that force on Rikers Island was being
applied excessively and unnecessarily. In 2014, the federal government, the Department of
Justice, joined that lawsuit. It had initially investigated use of force against juveniles on the
island but it came in as a full partner to the plaintiffs in 2014. Nunez is a federal case, in federal
court.
In October of 2015, the Nunez lawsuit was settled. It is a 63 page settlement agreement.
It is a consent decree that has had a major impact on the island and on all of our work ever since.
It required a new use of force policy, a policy that you know, but I have little doubt, will be
reviewed with you. It increased programming on the sensible view that idleness, as they say, is
the Devil’s playpen and that if people are idle, they are more likely to get involved in fights and
the like. It required prompt investigation of use of force cases and it improved the disciplinary
process for use of force cases, which is to say it impacted both our investigations division and
our trial division and it called for a pilot program for body worn cameras -- a program that has
now gone far beyond being a pilot program and is now a way of life on the island. In addition, it
called for increased training -- training that all of you have had before and training that this
program that you are about to embark on is part of what is required. It also established rules and
guidelines for assigning people to special units, for promoting people, to make sure that anyone
assigned to a special unit like ESU, or promoted has not been involved in serious use of force
incident in the prior five years. It has changed the way of life for anyone who has worked on
Rikers Island since 2011 or 2015. What also happened then was the appointment of a federal
monitor, Steve Martin, whose job it was to oversee the decree and make sure we complied with
its terms. The Monitor is still in place and calls with the monitoring team are almost daily.
Important to know that the decree sort of increased the sanctions for filing a false report of a use
of force incident and increased the sanctions for failing to report a use of force incident. And it
prescribed certain conduct, in particular, use of chemical agents when that was unnecessary and
233
gratuitous when an incident had been calmed or quelled -- striking someone in the head, choke
holds, things that by definition were excessive force. That was the Nunez Consent Decree in
2015. Since then, in the Nunez case, there have been three more court orders expanding the
agreement to different areas and an action plan in June of 2022.
The Nunez Decree now not only covers use of force, it covers intake, it covers self-harm
incidents, it covers staffing and sick leave and the like. There are a great many aspects of what
goes on in Rikers Island, what goes on in headquarters, that are subject to the Nunez Consent
Decree and the subsequent court orders. What I want to say before I close is this. Nunez is not a
no use of force policy or a no use of force decree. I testified in City Council and a Council
person said that people on Rikers Island, the incarcerated individuals, are among the most
dangerous in the city. And another Councilman responded and said you cannot say that. They are
pretrial detainees and I thought to myself, well the truth is they are dangerous and they are
pretrial detainees. People are here in large numbers, some 35% for homicides and for violent
crimes. The days when Rikers Island housed shoplifters and misdemeanants and non-violent
criminals are behind us with bail reform. What we house today are dangerous individuals and we
house a large portion of individuals with mental health issues who one wishes were elsewhere
but are ours and ours to keep safe and secure. What that means is that there will be occasions
when force is necessary. You know that and I know that; the Commissioner knows that. But
What Nunez means is force can never be unnecessary or excessive. Your work is scrutinized.
There is Genetec film everywhere. People are looking at you; lawyers are looking at you; judges
are looking at you and so it is critically important that while you are bold, you are also right and
thoughtful. That as each incident as it arises, you bring to it not only your experience, which in
most instances is vast, but your good judgment. I say to people Rikers Island is the only place
where when people go to work, they begin their day by saying “be safe”. It is not an easy job, but
in addition to be safe, be wise, be thoughtful, use force when it’s necessary. Never use force
when it’s excessive. I thank you for giving me the opportunity to talk today. I wish you well in
your training and perhaps the most important thing I can say is be safe and be well.
234
APPENDIX E:
PROPOSED COURT ORDER
235
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------- X
:
MARK NUNEZ, et al., :
:
Plaintiffs, :
:
- against - :
:
CITY OF NEW YORK, et al., :
:
Defendants. :
: 11 Civ. 5845 (LTS)(JCF)
------------------------------------------------------------- X
:
UNITED STATES OF AMERICA, :
:
Plaintiff-Intervenor, :
:
- against - :
:
CITY OF NEW YORK and NEW YORK CITY :
DEPARTMENT OF CORRECTION, :
:
Defendants. :
------------------------------------------------------------- X
[PROPOSED] ORDER
236
Section I: Remedial Steps for the Department to Address by December 31, 2023
1. UOF, Security and Violence Indicators: By, September 30, 2023, the Department, in
consultation with the Monitor, shall develop a set of data and metrics for use of force,
security and violence indicators that will be routinely evaluated by Department leadership
to identify trends and patterns regarding unnecessary and excessive force and violence in
order to identify the root cause of these issues and develop strategies to address them.
The Monitoring Team shall be permitted immediate access to the Department’s actions
(including but not limited to meetings, discussions, and internal reports) and data in order
to evaluate the quality of the Department’s assessment of its data and metrics.
2. Revise Search Procedures: By, October 30, 2023, the Department, in consultation with
the Monitor, shall reconstitute its search procedures to ensure searches are conducted in
an efficient, timely, safe manner and to reduce the possibility of a use of force. The new
search procedures shall be subject to the approval of the Monitor.
3. Revise Escort Procedures: By, October 30, 2023, the Department, in consultation with
the Monitor, shall revise its escort procedures to eliminate the use of painful escort holds.
The new escort procedures shall be subject to the approval of the Monitor.
4. Lock-in Procedures: By September 25, 2023, the Department shall develop and
implement a protocol that requires each lock-in to occur at certain times each day.
Housing unit staff must ensure the lock-in occurs and report the lock-in time for the
housing unit to the Tour Commander. The Department shall track and record the lock-in
times at each unit in every Facility to ensure the lock-in occurs as required. These
protocols and procedures shall be subject to the approval of the Monitor.
5. Door Security: By September 25, 2023, the Department shall develop and implement a
protocol to ensure the Control Station Door is secured at all times and to ensure that an
Control Station Door is never opened when a housing unit door is opened or an
incarcerated individual is in the vestibule. This protocol shall be subject to the approval
of the Monitor.
6. Staff Off Post: Staff shall not leave their post or place of assignment without the
permission of a superior. Employees who are authorized to leave their post for any reason
must return to the post as quickly as possible. Staff assigned to work to a housing unit
post (either the A or B post) shall not be permitted to leave their post until they have been
properly relieved or exigent circumstances exist.
7. ESU Training: By, August 31, 2023, the Department, in consultation with the Monitor,
shall develop and implement a training curriculum for the Emergency Services Unit or
any functional equivalent unit, including, but not limited to the Special Response Team
and the Special Search Team. The training shall include, among other things, procedures
and protocols for use of force, conducting searches, and responding to alarms and
emergency situations in a manner that ensures safety for incarcerated individuals and
staff. The content of the training programs shall be subject to the approval of the
Monitor. 263
263
This approval requirement is consistent with Consent Judgment, § XIII, ¶1(c) for Probe Team
Training.
237
8. Revise ESU CLOs: By, November 30, 2023, the Department, in consultation with the
Monitor, shall review and revise as necessary all of ESU’s command level orders 264
related to the use of force. The new ESU command level orders related to the use of force
shall be subject to the approval of the Monitor. 265
9. Screening and Assignment of Staff to Special Teams 266: By, October 30, 2023, the
Department, in consultation with the Monitor, shall develop and implement a screening
and assignment process for the initial assignment to ESU and routine reassessment of
ESU staff to ensure their continued fitness for duty. The Department’s screening policy
and reassessment procedures shall be subject to the approval of the Monitor.
10. Revise Pre-Promotional Screening Policies and Procedures: By, September 30, 2023,
the Department, in consultation with the Monitor, shall revise its pre-promotional
screening policies and procedures to address the issues identified by the Monitor in each
of its Court filings in 2023.
11. ID Staffing: By, November 30, 2023, the City shall ensure that the Department’s ID
Division maintains at least 21 supervisors and 85 investigators to conduct use of force
investigations unless and until the Department presents an internal staffing analysis and
can demonstrate to the Monitor that fewer staff are necessary to conduct thorough, timely,
and objective investigations of all Use of Force Incidents as required by the Nunez Court
Orders.
12. Additional Reporting by the City and Department Regarding Intake: On September
15, 2023 and November 15 2023, the City and Department shall file two additional
reports on the Court docket regarding the status of their continued efforts to implement
reliable Intake tracking systems for new admissions and inter/intra facility transfers.
13. Revise Command Discipline Policy and Procedures: By November 30, 2023, the
Department, in consultation with the Monitor, shall develop and implement appropriate
controls and procedures regarding the adjudication of Command Discipline, including but
not limited to the following:
a. timely processing of cases so that a minimal number of cases are dismissed due to
procedural errors;
b. quality assurance measures to ensure that all Command Disciplines impose an
appropriate outcome and do not merely default to the lowest level sanction, unless
proportional to the severity of the misconduct;
c. appropriate mechanisms to ensure cases that require referral for formal discipline
via MOCs are completed as required by policy, including but not limited to, when
264
This applies to the Emergency Services Unit or any unit that may serve the same function, but may
utilize a different name (e.g. the Special Response Team, the Special Search Team, etc.).
This approval requirement is consistent with Consent Judgment, § IV, ¶1 regarding approval of the
265
Use of Force Policy.

266
This includes the Emergency Services Unit or any functional equivalent, including but not limited to
Strategic Response Team and Special Search Team.
238
the conduct merits formal discipline or when a staff member has exceeded the
number of allowable CDs in a given time period; and
d. appropriate tracking of any appeal to the Legal Division and the outcome of the
appeal.
The Department’s Command Discipline policy and procedures shall be subject to the
approval of the Monitor.
14. External Assessment of Procedures for Preventing and Responding to Self-Harm:
The City and Department shall authorize, and the Department and CHS shall engage, a
consultant (and any necessary staff) who is a qualified expert in the prevention and
response to self-harm in correctional settings to conduct the assessment outlined below.
The Monitor has approved of the selection of Dr. Timothy Belavich. If Dr. Belavich
proves to be unavailable or becomes unavailable or his continued service becomes
otherwise unfeasible in the future, the Department will retain an appropriate replacement
subject to approval of the Monitor. The consultant shall conduct the following assessment
in consultation with the Monitor:
a. DOC and H+H policies related to Suicide Prevention to ascertain whether they
reflect generally accepted practice.
b. H+H protocols for screening, assessing, and treating the risk of suicide and DOC
protocols for responding to suicidal ideation/referrals and for monitoring those
who are on suicide precautions to determine whether they are adequate.
c. DOC staff’s practices and responses to self-harm incidents.
d. Current H+H and DOC protocols and practices to identify where performance is
subpar.
e. DOC and H+H’s Morbidity-Mortality Review process to ensure that it reflects the
generally accepted practice and relevant professional standards.
The consultant shall provide the Monitor with a report of his findings by December 31,
2023.
Section II: Monitor Reporting
1. The Monitor shall file status reports on October 10, 2023 and November 16, 2023 on the
City and Department’s efforts to address the specifically enumerated remedial relief
outlined in this Order.
2. On December 21, 2023, the Monitor shall file his next report with the compliance
assessments of the Nunez Court Orders pursuant to the Court’s June 13, 2023 Order, § 3.
SO ORDERED this _____ day of __________________, 2023
______________________________
LAURA TAYLOR SWAIN
Chief United States District Judge
239
APPENDIX F:
COMMISSIONER’S
MAY 26, 2023
LETTER TO MONITOR
240
Note: Reference
Case 1:11-cv-05845-LTS-JCF to 557
Document Incidents Numbers
Filed 07/10/23 areof 288
Page 246
Those Incidents Identified in the Monitor's
May 26, 2023 Report (dkt. 533).
document stored on the Tillid Group’s cloud platform, which resulted in its being directed to their spam folders.
Had either of them received the email, they would surely have responded.
Incident 3 The facts of the PIC 3 incident are these: On May 17, 2023, PIC 3 was assaulted by
several other incarcerated individuals in an intake pen at EMTC. As our General Counsel told you, an
investigation is underway. (It will include whether CODs were filed belatedly.) In your May 24 letter, you write
that “on May 22, the Monitoring Team sought a briefing on the investigation but, to date, a briefing has not been
provided.” I don’t know what you would expect. The Department’s General Counsel told the Deputy Monitor
by telephone that several MEO 16 interviews had been scheduled and that appropriate disciplinary action would
be taken if any officer had shirked their duty. (Three interviews have taken place to date.) Briefings on ongoing
investigations are hardly the norm. Moreover, as you acknowledge, the Department’s General Counsel
facilitated your access to video footage and reports so that you could review the incident.
Incident 4 On May 20, 2023, PIC 4 , age 31, was transported from a PACE unit at AMKC to
the Elmhurst Hospital after he complained to medical staff about headaches. Although he left the unit on his
own power, he quickly took a turn for the worse: he was placed on life support, where he remains. On May 22,
the Monitoring Team received a report from someone about PIC 4 s’ hospitalization and asked a Department
lawyer to “keep an eye out for any CODs.” That afternoon, the Department lawyer told the Deputy Monitor that
she had done “some double checking [and] wanted to let you know there are no COD’s for PIC 4 .” That
response should not have come as a surprise. In September 2022, a Department lawyer had informed the Deputy
Monitor by email that “typically there is no notification to COD generated for hospital runs . . . with the
exception of UOF cases.” PIC 4 s’ was not a use of force case. As your letter indicates, on May 23, the
Department’s General Counsel reported to the Deputy Monitor that PIC 4 “[who] is 31 years old, appeared to
have a heart attack and no foul play is currently suspected.” Your letter criticizes the Department for not making
“other details regarding the incident . . . available to the Monitoring Team.” But that criticism is also misplaced.
We know of no other details; you know what we know about the case.1
1
was discharged from DOC custody on May 24 on compassionate release. As a result, we no longer have any
PIC 4
information about his condition.
Visit NEW YORK’S BOLDEST on the Web at: www.nyc.gov/boldest
* * *
Your letter suggests that the three incidents “relate to matters that have long plagued the Department.”
That is not so. In two of the incidents—PIC 2 and PIC 4 —there was no departmental wrongdoing. Our sin in
those matters, it seems, was not reporting them to the Deputy Monitor quickly enough. I am not sure that you
would have done anything differently if you had learned on May 15, and not May 17, that PIC 2 had jumped to
his death, or on May 20, and not May 22, that PIC 4 had taken a turn for the worse. I do not believe that any
delay in notification impeded your work.
You write that that “[g]iven the aggravated nature of these particular incidents, staff’s failure to report
them . . . in a timely manner also calls into question the overall veracity of reporting and transparency within the
agency.” That is baseless. There is no indication in the PIC 2 incident or the PIC 4 incident that anyone
submitted a false report or attempted to cover up wrongdoing and the PIC 3 incident is under investigation.
Notably, in PIC 2 ’s case, a JAR was held promptly after the incident, something that has never occurred in years
past. It evidences transparency within the agency and cooperation with our partner. I don't expect your praise,
but to say that these three incidents call our veracity into question is patently untrue.
A letter to the Court that reads like your May 24 letter to the Corporation Counsel and me will do the
Department great harm at a time when we are making great strides. Sentences like “[t]hese cases represent
significant cause for concern about imminent risk of harm to those in custody” will fuel the flames of those who
believe that we cannot govern ourselves. Can that really be said about PIC 2 ’s case? Or PIC 4 s’?
Finally, let me say this. We respond daily to a steady stream of emails and telephone calls from the
Deputy Monitor, many on short deadlines, and try to do so in a timely and accurate fashion. That is
indisputable. To describe what occurred in these three cases as evidence of lack of cooperation is wrong.
Hyperbole is always unfortunate, and it permeates the last pages of your May 24th letter.
The Monitoring Team has recently emailed about two other cases not mentioned in your May 24 letter: PIC 1
and PIC 5 . If you intend to discuss them in any letter to the Court, I would like additional time to
address them. I am disappointed that we were given so little time to prepare this response—that a 12:00 p.m. deadline
(already unnecessarily short) was moved to 10:30 a.m. after it was agreed upon.
Sincerely,
Louis A. Molina
Commissioner

APPENDIX G:
DISCIPLINARY DECISIONS BY OATH
& CIVIL SERVICE COMMISSION
245
Dep’t of Correction v. McGibbon

OATH Index No. 1526/20 (Apr. 27, 2022), adopted, Comm’r Dec. (July 1, 2022), modified,
NYC Civ. Serv. Comm’n Case No. 2022-0579 (Oct. 28, 2022), appended
Petitioner proved that Respondent, a correction officer, used

excessive and impermissible force against two inmates in two
different incidents, and submitted a false or misleading report about
the incidents. ALJ recommends that Respondent’s employment be
terminated.
CSC modified penalty to maximum penalty short of termination.

______________________________________________________
NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF CORRECTION
Petitioner
- against -
DAVID MCGIBBON
Respondent
______________________________________________________
REPORT AND RECOMMENDATION

JOYCELYN McGEACHY-KULS, Administrative Law Judge
The Department of Correction (“Department” or “petitioner”) referred this disciplinary
proceeding to this tribunal pursuant to section 75 of the Civil Service Law. Civ. Serv. Law § 75
(Lexis 2021) alleging that Respondent, Correction Officer David McGibbon used excessive force
against two inmates in two separate incidents (Charges, Pet. Exs. 1A, 1B). Respondent denied any
wrongdoing and contended that he used appropriate force in each incident. The Department also
alleged that Respondent submitted false or misleading use of force (“UOF”) reports regarding
incident.
The trial was conducted remotely via Webex due to the COVID-19 pandemic. The
Department presented documentary evidence, including video footage of the alleged incidents,
screenshots from those videos, and testimony from three witnesses: Supervising Investigator
(“SI”) J. Weinbrecht; Investigator J. Barfield; and Deputy Director of Investigations (“DDI”) T.
Johnson. Respondent relied on documentary evidence and testified in his own behalf. Respondent
did not call any other witnesses.
For the reasons below, I find that Petitioner proved the charges and recommend a penalty
of termination.
ANALYSIS
The charges stem from two separate incidents that occurred at the Anna M. Kross Center
(“AMKC”) Clinic on September 11, 2017 and March 31, 2020. The Department alleges that on
September 11, 2017, Respondent used impermissible and excessive force against inmate Cruz by
placing him in a chokehold and pushing him into a metal shelving unit when he failed to follow
Respondent’s directive to enter the housing unit. The Department alleges that use of the chokehold
was prohibited in the absence of imminent danger of death or serious bodily harm to Respondent
or others. The Department claims that on March 31, 2020, Respondent used unnecessary force
against Fajardo by pushing the inmate with his stomach when the inmate failed to follow
Respondent’s directive to enter a holding cell. The Department also alleges that Respondent
submitted false, misleading, incomplete or inaccurate reports regarding each of these incidents.
Use of Force Incident: September 11, 2017

Video Evidence
During the trial, the Department played Genetec surveillance videos from several angles
that recorded the events in the vestibule (Pet. Ex. 2). These videos do not capture audio therefore
there is no recording of the conversations between Respondent and Cruz. The majority of the
interaction is captured from angle 31.183 which depicts the vestibule between the housing unit and
the control room (“A Station”). There is a large window in the A Station allowing a view of the
vestibule and housing area gate. The gate to the housing unit is on the left side and the A station
is on the right. A metal door is at the end of the vestibule. At 7:42:47, Cruz is depicted alone in
the vestibule where he removes a small object from his waist and passes it through the gate to
another inmate in the housing area. Cruz continues pacing alone in the vestibule and talking to
inmates on the other side of the gate. Other correction officers briefly enter and exit the vestibule
without speaking to Cruz. At 7:46:15, Cruz brings a large plastic garbage can into the vestibule
and sits on the lid of the garbage can and continues talking with inmates. At 7:47:06, Officer
Regice comes out of the control room and speaks to Cruz, who then throws the garbage can and
lid against a wall in the vestibule area. Cruz appears to be agitated and resumes pacing and waving
his arms.
At 7:48:01, Respondent enters the vestibule from the A Station. Respondent and Cruz
engage in an animated conversation, waving their arms and gesturing while speaking to each other.
Respondent approached Cruz several times causing Cruz to step back. At 7:48:21, Officer Regice
intervenes and guides Respondent away from Cruz. Respondent moves away from Officer Regice
and continues to argue with Cruz. At 7:48:33, Respondent and Cruz are standing in close
proximity of each other, and Officer Regice attempts to create space between them on several
occasions. Inmate Cruz’s arms are raised and his hands are empty. At 7:49:00, Respondent
approaches Cruz and Officer Regice stands between them and attempts to separate them as they
continue to argue.
At 7:50:15, Officer Regice guides Respondent to the A station. Cruz remains in the
vestibule. He is animated and appears to be talking to Respondent who emerges seconds later
from the A station. At 7:50:28, Officer Regice stands between Respondent and Cruz as they
continue to argue. At 7:51:05, Captain Johnston and another officer enter the vestibule. At
7:51:14, Cruz walks toward Captain Johnston and removes a small object from his sock and shows
it to Captain Johnston. At 7:51:26, Officer Regice again stands between Cruz and Respondent.
Captain Johnston and Cruz begin talking to each other. At 7:52:00, Respondent steps between
Cruz and Captain Johnston. Cruz continuing to argue with Respondent, raises his arms; his hands
are open and empty.
At 7:52:18, Respondent lunges at Cruz, grabbing him by the neck with both hands, placing
Cruz in a chokehold. From angle 31.182, Respondent is seen choking Cruz and pushing him
against a wall. Cruz places his hands on Respondent trying to push him away. At 7:52:57, two
officers intervene to separate Respondent and Cruz (Pet. Ex. 8).
The Department produced three still shots from the video depicting the following:
Respondent choking Cruz; Cruz attempting to push Respondent away while Respondent maintains
the chokehold; and two officers attempting to separate Respondent and Cruz while Respondent’s
hands remained around Cruz’s neck (Pet. Ex. 2B-D).
(Pet. Ex. 2B)
(Pet. Ex. 2C)

(Pet. Ex. 2D).
The Investigation
DDI Johnson has been employed by the Department since 2007. She began her career at
the Department as an investigator and was promoted to supervising investigator in 2015. She has
been a deputy director of Investigations since 2018. She explained that this matter was initially
investigated by the AMKC field team and Supervising Investigator J. Henderson. DDI Johnson
was subsequently assigned to supervise and review SI Henderson’s investigation (Tr. 192). She
testified that SI Henderson reviewed the Genetec video and reports related to the case, including
the injury to inmate report and use of force reports. He interviewed witnesses to the incident
however, Cruz declined to be interviewed.
DDI Johnson also reviewed the video and collected documents and reports to determine
whether additional documentation or interviews were necessary to complete the investigation.
DDI Johnson testified that she and SI Henderson referred to the Use of Force Directive 5006R-C,
which was in effect on the date of the incident, to analyze the evidence and come to a determination
regarding Respondent’s conduct. SI Henderson wrote a closing report with his investigation
findings. He concluded that “although Cruz was non-compliant and aggressive toward DOC staff,
the force that Respondent used against Cruz was not within the guidelines in the Use of Force
Directive 5006R-C.” DDI Johnson reviewed and signed the closing report accepting SI
Henderson’s investigation and conclusion regarding the incident. SI Henderson also signed the
report (Tr. 188- 94; Pet. Ex. 1).
After watching the video of the incident, DDI Johnson highlighted that Respondent and
Cruz argued for four to five minutes. She noted that Officer Regice intervened on several
occasions attempting to de-escalate the tension between Respondent and Cruz by talking to them
and attempting to separate them. She noted that “at some points, [Officer Regice] even places his,
physically places his body in between the two, like he's trying to de-escalate the situation. . .
[Officer Regice] is looking directly at Officer McGibbon, and he's talking to him face-to-face” (Tr.
206). She described Officer Regice pointing and telling Cruz to go that way and observed that
Officer Regice was trying to pull Respondent by the hand towards the A station. She noted that
Respondent entered the A station and seconds later returned to the vestibule and resumed the
argument with Cruz. DDI Johnson described that “at several points, [Respondent and Cruz were]
chest to chest” and noted that Officer Regice continued with his attempts to separate them. She
stated that Officer McGibbon should have stepped into the A station and called the supervisor (Tr.
206, 241).
DDI Johnson emphasized that during the argument, Respondent pushed Cruz back and
placed his hands around Cruz’s neck pushing him back by his neck into the metal shelfing units.
Officer Regice and another officer intervened to separate Respondent from Cruz. Cruz was
escorted out of the vestibule, and Officer McGibbon returned to the A station. DDI Johnson
testified that the placing of both hands around Cruz’s neck is considered a chokehold (Tr. 221).
DDI Johnson testified that according to the Use of Force Directive, officers are not
permitted to use deadly physical force such as a chokehold, except when all other alternatives to
such force have been exhausted and when an officer must defend himself or another person from
what they reasonably believe to be the use of imminent deadly physical force by the inmate.
According to DDI Johnson, a chokehold is an example of deadly physical force. She
asserted that Respondent’s use of the chokehold was not proportionate to Cruz’s level of resistance
at the time the chokehold was executed. She noted that prior to Respondent choking Cruz, Cruz’s
hands were up and open and therefore he did not pose a threat of deadly physical force that would
justify Respondent’s use of force. DDI Johnson also observed that Respondent remained engaged
in an argument with Cruz for four to five minutes and concluded that Respondent should have
remained in the A station to avoid further escalating their interaction. DDI Johnson noted that
members of service are not permitted to use force in response to a verbal threat (Tr. 243, 304).
DDI Johnson testified that Cruz’s custody level was “maximum security” which means
that he was considered “highly assaultive and has a high propensity to injure other inmates.” She
acknowledged that this information was not reviewed as part of the investigation. However, DDI
Johnson offered that knowledge of the inmate's infraction history would not have changed the
investigation findings because the determination that Respondent used excessive force was based
on staff reports and the video (Tr. 272, 299).
Respondent’s Evidence
Respondent has been employed by the New York City Department of Correction for 14
years. Before joining the Department, Respondent worked as a machinist in the U.S. Navy. Upon
joining the Department, he underwent four months of training including instruction on use of force
and other Department directives. Between 2007 and 2017, he took multiple use of force refresher
courses that consisted of classroom lessons and interactive physical simulations. Before this
incident, Respondent also received training in defensive tactics, where he learned authorized and
prohibited use of force techniques. Respondent testified that he was trained in conflict resolution
and crisis intervention and was taught to use interpersonal communication (“IPC”) skills to de-
escalate situations that might arise with inmates. He learned that maintaining a safe distance from
an inmate was a de-escalation technique and testified that he should request the assistance of a
supervisor to resolve any conflicts with an inmate. Respondent also received training in the use
of deadly physical force and was instructed that deadly physical force may only be used as a last
resort. He was further instructed that, in accordance with the use of force directive, alternatives
must be exhausted before deadly physical force was used (Tr. 372-75).
Respondent is assigned to AMKC which houses inmates in rehabilitation programs or with
mental health issues. On the date of this incident, he was assigned to escort inmates between their
housing units and the main clinic to get their medication (Tr. 322, 324). He explained that he first
escorts inmates from the housing unit to the bridge area. Once in the bridge area, he pat-frisks the
inmates for security reasons, then calls to confirm his clearance to escort the inmates to the main
clinic. Respondent elaborated that after inmates returned from the clinic, they have to wait in the
bridge area, outside of the A Station, to be pat-frisked again before they are permitted to enter the
housing area. Respondent testified that he has escorted as many as 10 inmates at a time to the
clinic “safely without incident” and that he had escorted Cruz to the clinic on a daily basis for
almost a year prior to this incident (Tr. 326, 327, 329).
Upon review of the Genetec video, Respondent provided a chronology of his encounter
with Cruz in which he conceded, ultimately, that he used a chokehold against the inmate when the
inmate did not pose a threat of serious physical injury or death. Respondent recalled that he did
not escort Cruz from the clinic on the date of the incident because Cruz ran away from him. Thus,
he continued to the A Station without Cruz. Although Cruz had not been pat-frisked, Respondent
insisted that Cruz was secured and did not pose a threat to other inmates. Inmate Cruz later entered
the vestibule area and refused to go behind the gates of the housing area (Tr. 378, 379, 393).
Respondent described Cruz as loud and irate, telling Respondent that he was not going back behind
the gate. Respondent related that Cruz then approached him “in an aggressive manner” and
Respondent told him to step back and calm down. However, Cruz continued to be aggressive and
refused to enter the housing area telling Respondent “make me, make me, make me” (Tr. 331,
334). He recalled that Capt. Johnson entered the vestibule area because she heard a commotion
and that Cruz approached her in an “aggressive manner.” At that point, Respondent intervened
and testified that he “made contact with Cruz’s body” after Cruz said “I’m about to cut you” and
began talking in a threatening manner. Because he feared for his safety, Respondent “jumped on
[Cruz]” (Tr. 338-40).
Respondent claimed that he was not agitated during his interaction with Cruz. He asserted
that despite the depiction in the Genetec video, he was not arguing with the inmate. Rather, he
was having a discussion with Cruz and was utilizing IPC skills. Respondent described his
demeanor as calm, not agitated, throughout his interaction with Cruz, asserting that he only raised
his voice because Cruz could not hear him. Respondent claimed that he talks with his hands (Tr.
393, 410).
Respondent conceded that he was standing very close to Cruz and that there was not a safe
distance between them. He admitted that he made physical contact with Cruz and characterized it
as Cruz’s torso in his hand (Tr. 398). Respondent also acknowledged that Officer Regice was
trying to create distance between himself and Cruz to de-escalate the situation. While admitting
that he advanced toward inmate, Respondent claimed that he was attempting to de-escalate the
situation. Respondent denied pushing Cruz but noted that his “hands advanced toward [Cruz]” to
create distance between them. Respondent recalled that Cruz removed an object from his sock but
did not perceive the object as a weapon (Tr. 410, 413, 414, 418). Respondent testified that although
Cruz did not attempt to strike him at any point during their interaction, he believed that Cruz was
a threat because he continued to advance toward him. Respondent further acknowledged that he
could have gone into the A Station to avoid further conflict with Cruz. Respondent conceded that
Cruz did not pose a threat of serious injury or death and admitted that placing Cruz in a chokehold
was excessive (Tr. 423, 424). Respondent shared that at the time of the incident, he was upset
about news of a family member’s medical condition and that he regretted his conduct during this
incident (Tr. 343).
Respondent Violated the Department’s Use of Force Directive 5006R-C

The Department must prove by a preponderance of the credible evidence that Respondent
used unauthorized or impermissible force on Cruz. See Dep’t of Correction v. Hall, OATH Index
No. 400/08 at 2 (Oct. 18, 2007), adopted, Comm’r Dec. (Nov. 2, 2007), aff’d, NYC Civ. Serv.
Comm’n Item No. CD 08-33-SA (May 30, 2008); Dep’t of Correction v. Ingram, OATH Index
No. 320/04 at 4 (Feb. 13, 2004), adopted, Comm’r Dec. (Mar. 18, 2004). I find that the Department
met its burden.
The Department’s Use of Force Directive 5006R-C, in effect on the date of this incident,
expressly prohibits the use of more force than is necessary to restrain an inmate, control a situation
or protect oneself or others. It delineates the circumstances under which force may or may not be
used and alternatives to the use of force. The Directive offers alternatives to the use of force and
specifically states that force may be used “only as a last alternative after all other reasonable efforts
to resolve a situation have failed” (Pet. Ex. 3 at V. A, B. 1). Pursuant to the Directive, force may
be used against an inmate only to defend oneself or another from a physical attack or from an
imminent physical attack or as a last resort, and when there is no practical alternative available to
prevent serious physical injury to staff, visitors, inmates, or any other person (Pet. Ex. 3 at IV. A.
1, 8). Use of a chokehold is deadly physical force and permits that a member of service may use
deadly physical force against an inmate only “to defend him/herself or another person from what
he/she reasonably believes to be the imminent use of deadly physical force by the inmate” (Pet.
Ex. 3 at V. C. 2. A).
10
The Department produced compelling video evidence depicting Respondent lunging at

Cruz and placing him in a chokehold with both hands around his neck. It is apparent from the
video footage that Respondent was not facing an imminent use of deadly physical force from Cruz.
Immediately prior to the chokehold, Cruz’s arms were extended upward and his hands were empty.
Nonetheless, Respondent grabbed him by the neck with both hands. Respondent initially
attempted to justify this use of deadly physical force by stating that he felt threatened because Cruz
continued to advance toward him. However, this account is contradicted by the video evidence.
Respondent also testified that Cruz threatened him, stating that he was going to cut him.
Respondent’s account of this threat is not credible as Respondent later acknowledged that prior to
his use of force, Cruz did not pose a threat of serious injury or death. Further, even if there were
credible evidence of the inmate’s statements, Respondent’s use of force would not be justified
against verbal threats. Respondent ultimately conceded that the force he utilized was excessive.
Accordingly, the charge that Respondent used impermissible and excessive force against
Cruz is sustained.
Respondent Submitted a False or Misleading Use of Force Report

Staff members who use or witness a use of force must prepare a written report “based on
their own observations,” with a “complete account” of events leading to the use of force and a
“precise description of the incident,” including the force used by the report writer (Pet. Ex. 4;
Directive 5006R-C § V(F)(3)(a), (b)). To prove that Respondent provided a false or misleading
account of the use of force incident, Petitioner must establish, by a preponderance of the credible
evidence, “that the underlying incident occurred, and that respondents’ statements materially
deviated from the actual events.” Dep’t of Correction v. Dominguez, Hernandez, and Christie,
OATH Index Nos. 615/19, 731/19, and 770/19 at 16 (May 21, 2019), adopted, Comm’r Dec. (Aug.
6, 2019), aff’d, NYC Civ. Serv. Comm’n Case Nos. 2019-0824, 2019-0825 (Feb. 5, 2020) (report
that omitted altercation, but included events leading up to it and after it was misleading). The
Department has proved this charge.
Respondent submitted his use of force report on the date of the incident and testified that
he wrote this report while the incident was still fresh in his mind. He admitted that he was required
to provide an accurate and precise description of the incident and that he had a duty to describe the
incident truthfully (Tr. 425). Respondent reported that Cruz was cursing and was acting
11
aggressively toward him and Captain Johnston. Respondent stated that when he and Captain
Johnston attempted to “gain separation” from Cruz, the inmate moved his hand into his groin area
and threatened them stating, “I’ll do you like that other officer in the tombs.” Respondent justified
the use of force by stating that Cruz advanced toward him and Captain Johnston and that he
believed that Cruz had hidden an “unknown object” in his groin. In addition, Respondent wrote
that he feared for his life and attempted to secure the inmate against a wall using an “upper control
hold to [Cruz’s] upper chest area.” Respondent then noted that this control hold shifted to Cruz’s
“collar area” because of Cruz’s movement. Respondent reported that he attempted to take Cruz to
the floor but “lost grip” of the inmate. Respondent further reported that force was applied to Cruz’s
upper torso (Pet. Ex. 6).
Respondent reported some details of the events leading up to the use of force but he omitted
or mischaracterized significant events that were depicted in the video. Most significantly, while
the chokehold is clearly depicted in the video, Respondent fails to report his use of the chokehold
or any reference to contact with Cruz’s neck. Respondent’s report does not accurately describe
where the force was inflicted on Cruz’s body. He described contact with Cruz’s “upper body” that
shifted inadvertently to Cruz’s “collar area” rather than stating that he grabbed Cruz by the neck
as clearly captured in the video and the photographs in evidence. These statements were false and
misleading demonstrating Respondent’s attempt to cover up the excessive force which he used
against Cruz. Further, his description of the events immediately preceding his use of force is not
consistent with the video evidence. Respondent reported that prior to his use of force, Cruz had
an “unknown object” in his hand and that he feared for his life. However, Cruz’s hands were open
and empty at the time that the force was used.
Respondent’s use of force report is materially false and misleading. Respondent did not
report that he placed Cruz in a chokehold and did not state that he placed his hands on Cruz’s neck
as clearly depicted in the video. The charge that Respondent provided false or misleading
testimony in his use of force report is, therefore, sustained.
Use of Force Incident: March 31, 2020

Video Evidence
On March 31, 2020, Respondent was working at the security post in the main clinic in
AMKC. He was responsible for ensuring that inmates waiting to go to the clinic or return back to
12
the housing area were secured in the holding pen. The Genetec surveillance videos from several
angles recorded the events in the main clinic in AMKC (Pet. Ex. 8).
From angle 91.168, beginning at 8:49:24, Fajardo is depicted standing in the corridor of
the main clinic in AMKC with two other inmates. Respondent is at the other end of the corridor.
Respondent gestures for the inmates to come towards him. Respondent walks toward the clinic
pens with the inmates. Fajardo moves a few steps towards the pen then turns around to face
Respondent and made a fist towards the officer's face but does not make contact with Respondent’s
face or body. Respondent then continues to walk behind the inmate as they headed towards the
pen.
Angle 91.181 captures the events inside the clinic pen and through the bars outside of the
pen. Fajardo and Respondent are standing outside of the pen. Fajardo continues to argue with
Respondent as he enters the pen. The inmate then turns back around to face Respondent. At
8:50:59, Fajardo continues into the pen and Respondent enters behind him. Fajardo again turns
around to face Respondent and Respondent, who appears to be several inches taller than Fajardo,
uses his stomach to push the inmate in the chest as they continue to argue, causing the inmate to
step back. Two other officers enter the pen and attempt to separate Respondent and Fajardo. At
8:52:05, all the officers leave the pen and Fajardo is secured inside with other inmates.
The Investigation
This case was assigned to J. Barfield for investigation under the supervision of SI
Weinbrecht. As supervising investigator, SI Weinbrecht advises her assigned investigators on the
sufficiency of their investigations and reviews their intake closing reports to determine accuracy
and completeness. She reviews the intake report and the evidence, including the Genetec video,
the inmate statements, the staff reports, and injury reports to determine whether the report is
accurate and review whether or not the staff was in compliance with directives and policy (Tr. 13,
14, 17).
Citing the Directive, SI Weinbrecht testified that when an inmate presents passive
resistance, such as being verbally abusive or refusing an order, the officer should summon a
supervisor, maintain a safe distance, and use IPC skills to resolve the situation. SI Weinbrecht
noted that Fajardo was passively resisting Respondent’s verbal directives (Pet. Ex. 9; Directive
5006R-D § VI(B)(1)(d); Tr. 59).
13
When reviewing the Genetec video of this incident at trial, SI Weinbrecht noted that
Fajardo was animated and agitated when he spoke to Respondent. Respondent stepped closer to
the inmate and gestured to Fajardo to enter the pen. At that point, Fajardo turned around to face
Respondent and gestured a fist punch towards the officer. Fajardo was non-compliant and
passively resisted Respondent’s order. Respondent did not attempt to de-escalate and continued
to engage in a verbal debate with the inmate. Fajardo ultimately complied with Respondent’s order
and entered the holding pen. However, Respondent followed Fajardo into the pen, where he
continued their verbal confrontation. Respondent utilized his stomach to push the inmate in the
chest when Fajardo was compliant and had not presented any active resistance. SI Weinbrecht
concluded that, based on Fajardo’s compliance, it was not necessary for Respondent to enter the
pen. Respondent had an opportunity to secure the inmate in a pen and close the door and notify a
supervisor of the inmate's behavior (Tr. 62, 63).
SI Weinbrecht testified that Respondent reported that Fajardo spit in his face prior to
entering the holding pen but the investigation was inconclusive regarding this allegation. She
elaborated that there was no spit observed on the Genetec video and there were no gestures that
would indicate that Fajardo spit on Respondent (Pet. Ex. 7; Tr. 72).
Investigator Barfield drafted the closing report and concluded that Respondent’s use of
force was unnecessary and violated the UOF Directive because Fajardo “could have been secured
in the pen without force.” Respondent could have closed the door to the holding pen after Fajardo
entered the pen (Pet. Ex. 7). She noted that Respondent created a dangerous situation by entering
the pen with inmates and that due to the escalation and use of force with Fajardo, other officers
had to enter the holding pen to separate Respondent from Fajardo. Both Investigator Barfield and
SI Weinbrecht testified that MEO-16 interviews were not conducted because the video evidence
and the documentation obtained during the investigation were sufficient to close the case with
charges (Tr. 112, 131).
Respondent’s Evidence
Respondent reviewed the video during the trial and testified that when he was escorting
Fajardo to the holding pen, Fajardo was behaving aggressively and pointed his index finger in
Respondent’s face. Respondent testified that he repeatedly asked Fajardo to go into the holding
pen and when Fajardo entered the pen he turned around and spit in Respondent’s face. Respondent
14
ordered the inmate out of the pen but he refused. Respondent then went into the pen behind the
inmate, told him that his behavior was disgusting and disrespectful, and asked Fajardo to come out
of the holding pen. Respondent claims that when he entered the pen, he and Fajardo “bumped
each other” (Tr. 358, 362, 367).
Respondent explained that he did not secure the door to the pen because he “got spit in the
face.” He explained that he followed Fajardo into the pen because he refused to step out of the
pen as Respondent directed. Respondent acknowledged that Fajardo complied with his initial
request to enter the holding pen and that his “order changed after [Respondent] got assaulted” (Tr.
433). He testified that immediately after Fajardo spit on him, he followed him into the pen and
asked him to step out.
Regarding the bump, Respondent initially testified that when he was in the pen, he and
Fajardo “bumped into each other” when the inmate turned around. Respondent later testified that
this force was necessary to control the situation because he was assaulted (Tr. 366; Pet. Ex. 10).
Respondent denied that he pushed the inmate with his stomach, explaining that he is at least 100
pounds heavier than Fajardo “so my force is going to make him move, he's a smaller guy than me.”
However, Respondent testified that he considered this contact to be a use of force (Tr. 438, 445).
Respondent Violated the Department’s Use of Force Directive 5006R-D

At the time of this incident, the Department’s Use of Force Directive 5006R-D was in
effect. This directive provides that a use of force includes “any instance where Staff use their
hands or other parts of their body . . . to restrain, subdue, or compel an inmate to act or stop acting
in a particular way.” Directive 5006R-D § III.
This Directive limits the types of force that may be used against inmates and prohibits use
of force, inter alia, “[t]o punish discipline, assault, or retaliate against an inmate.” Directive
5006R-D § V(B). Force may be used on an inmate, inter alia, “[a]s a last resort and where there
are no practical alternatives available to prevent physical harm to Staff, visitors, Inmates, or other
persons”; or “[t]o prevent or stop the commission of crimes . . . or [t]o prevent the destruction of
property that raises a safety or security risk; or [t]o enforce Department or Facility rules, policies,
regulations and/or court orders where lesser means have proven ineffective and there is an
immediate need for compliance . . . ”. Directive 5006R-D § V(A).
15
It is not disputed that Fajardo ultimately complied with Respondent’s order to enter the
holding cell. Respondent claims that when Fajardo was entering the holding pen, Fajardo spit in
his face causing Respondent to order Fajardo to leave to pen. Although the video did not capture
Fajardo spitting on Respondent, it is clear from the video that Respondent followed Fajardo into
pen and bumped him with his stomach causing Fajardo to step back. Contrary to Respondent’s
testimony, this contact appeared to be deliberate and in retaliation for Fajardo spitting is his face.
Accordingly, the charge that Respondent used unnecessary force against this inmate is
sustained.
Respondent Submitted a False or Misleading Use of Force Report

As noted in the analysis of the prior incident, members of service are required to file a
written use of force report when they employ a use of force. The use of force report shall include
a detailed description of the Use of Force incident, the events preceding the Use of Force incident,
including any attempts to de-escalate the situation and avoid the Use of Force, and the reasons for
engaging in the Use of Force (Tr. 65-68; Pet. Ex. 9, Directive 5006R-D §VI (C) (5) (a), (c)).
In his use of force report, Respondent wrote that while directing Fajardo to enter the
holding pen, Fajardo became verbally aggressive and refused Respondent’s directives. He claimed
that Fajardo cursed at him and that Respondent continued to give verbal commands. As Fajardo
and other inmates were walking to the pen, Fajardo turned and made “a closed fist as if he was
going to strike” Respondent. Respondent reported that Fajardo again told him “fuck you” and spit
in his face. Respondent directed Fajardo to step out of the pen and when Fajardo did not comply,
Respondent stepped back into the pen and “as the inmate turned around [Respondent] and the
inmate bumped (sic) into each other. Respondent further reported that “force was necessary to
control the situation because [Respondent] was assaulted” (Pet. Ex. 10).
SI Weinbrecht reviewed this report as part of her investigation and concluded that this
report was false and inaccurate because Respondent’s force against Fajardo was deliberate. She
further noted that the incident was not terminated after Respondent used his stomach to push into
the inmate as Respondent reported rather, Respondent continued to engage in a verbal
confrontation and advanced toward the inmate. Further, Respondent failed to report that additional
staff came to the pen to separate both Respondent and the inmate. SI Weinbrecht testified that the
video evidence was inconclusive regarding Fajardo spitting in Respondent’s face (Tr. 69).
16
Respondent acknowledged certain omissions in his report such as his failure to report that
he placed his finger in Fajardo’s face and that another officer had to separate him from Fajardo
when the interaction escalated (Tr. 447-449). Based on Respondent’s mischaracterizations and
omissions, I find the charge that Respondent provided false or misleading information in his use
of force report is therefore sustained.
FINDINGS AND CONCLUSIONS
1. Petitioner established that Respondent used excessive force

against an inmate on September 11, 2017, in violation of
petitioner’s rules and its UOF Directive.
2. Petitioner established that Respondent provided a false or

misleading use of force report relating to the September 11,
2017, incident, in violation of petitioner’s rules and its UOF
Directive.
3. Petitioner established that Respondent used unnecessary force

against an inmate on March 31, 2020, in violation of petitioner’s
rules and its UOF Directive.
4. Petitioner established that Respondent provided a false or

misleading use of force report relating to the March 31, 2020,
incident, in violation of petitioner’s rules and its UOF Directive.
These findings of fact are final pursuant to section 1046(e) of the New York City Charter.
Charter § 1046(e) (Lexis 2022).
RECOMMENDATION
Upon making the above findings, I requested and received a summary of Respondent’s
personnel abstract. 1 Respondent was hired as a correction officer in August 2007. He has no prior
disciplinary history. For Respondent’s excessive, impermissible use of force against Cruz and the
unnecessary use of force against Fajardo and his filing of false or misleading use of force reports,
1
In response to my request to the Department for Respondent’s personnel record, Respondent produced a Certificate
of Appreciation from AMKC dated December 7, 2018. Respondent also produced a reference letter from Capt. K.
Skinner dated July 3, 2020 citing Respondent’s “remarkable talents” as a Correction Officer. However, these
references and commendations do not mitigate Respondent’s misconduct in these instances.
17
the Department seeks a recommendation of termination. 2 My penalty recommendation is based

on the evaluation of the evidence establishing the misconduct, in addition to the consideration of
any aggravating or mitigating factors. I find that termination is the appropriate penalty.
Although the incidents occurred over three years apart, there are striking similarities in the
circumstances and in Respondent’s conduct. In each incident, Respondent engaged with “irate”
inmates, allowing himself to be drawn into arguments with the inmates where he was taunted or
provoked. In each incident, Respondent reacted with anger, demonstrating a lack of self-control,
and evincing a penchant toward violence in response to passive resistance. In each of these
instances, Respondent could easily have de-escalated the situation and terminated the interaction
with the inmate without using force by walking away, maintaining distance from the inmates, or
by contacting a supervisor. However, in each instance, Respondent demonstrated a determination
to engage with these inmates by rejecting the assistance and intervention of his colleagues as they
spoke to him, stood between him and the inmates or tried to pull him away from the inmates. On
each occasion, such interaction escalated resulting in Respondent’s use of force against inmates.
In considering appropriate penalties, this tribunal has consistently applied the principle of
progressive discipline with the objective of achieving employee behavior modification through
increasing penalties for repeated or similar misconduct. See Dep’t of Transportation v. Jackson,
OATH Index No. 299/90 at 12 (Feb. 6, 1990), adopted, Comm’r Dec. (Mar. 20, 1990) (“It is a
well-established principle in employment law that employees should have the benefit of
progressive discipline wherever appropriate, to ensure that they have the opportunity to be apprised
of the seriousness with which their employer views their misconduct and to give them a chance to
correct it.”). To that end, penalties for excessive use of force against an inmate have ranged from
a 15-day suspension to termination, depending on the “employee’s disciplinary record, the extent
of force, the degree of provocation, if any; and the extent of any subsequent deception.” Dep’t of
Correction v. Ward, OATH Index No. 2137/18 at 6 (Dec. 31, 2018) (quoting Dep’t of Correction
v. Scott, OATH Index No. 376/06 at 5 (July 10, 2006).
However, in the event that an employee has little or no disciplinary history, termination
may be imposed where the proven conduct is so egregious that a lesser penalty is inadequate. See
2
The initial incident prior to the October 27, 2017 effective date of the Department’s Disciplinary Guidelines for Use
of Force Incidents which were developed as an outgrowth of a federal lawsuit. See Nunez v. City of New York, 11
Civ.5845 (LTS) (JCF) (S.D.N.Y. Oct. 21, 2015).
18
Keith v. NYS Thruway Auth., 132 A.D.2d 785, 786 (3d Dep’t 1987) (upholding termination for
first offense where incident was egregious); Dep’t of Correction v. Agbai, OATH Index No. 156/14
(Nov. 25, 2013), adopted, Comm’r Dec. (Jan 2, 2014), aff’d, NYC Civ. Serv. Comm’n Case No.
2014-0064 (June 3, 2014), aff’d, Sup. Ct. Index. No. 101083/2014 (Mar. 27, 2015), aff’d, 150
A.D.3d 443 (1st Dep’t 2017) (officer terminated for using excessive force by stomping on inmate’s
head causing loss of permanent front tooth); Dep’t of Correction v. Andino, OATH Index Nos.
731/13 & 1000/13 (May 14, 2013), adopted, Comm’r Dec. (July 8, 2013), aff’d, NYC Civ. Serv.
Comm’n Case No. 35462 (Jan. 27, 2014) (termination recommended for officer with brief tenure
and no prior discipline where he was found guilty of using excessive force against inmates and
making false statements on multiple occasions); Latimer v. Dep’t of Health, NYC Civ. Serv.
Comm’n Item No. CD 84-77 (Oct. 5, 1984) (in spite of policy of progressive discipline, penalty
of termination for first offense upheld where proved misconduct was intentional and obstinate).
The fact that an inmate is not seriously injured is also not a bar to a recommendation of termination
where, as here, the force used had the propensity to end in a fatality. See Dep’t of Correction v.
Black, OATH Index No. 231/21 (June 22, 2021), adopted, Comm’r Dec. (Oct. 19, 2021).
I find that the use of deadly physical force against an inmate who is passively resisting
Respondent’s directives to be egregious misconduct warranting termination. This misconduct
coupled with Respondent’s subsequent use of force, in response to passive resistance and his false
statements and omissions while reporting his uses of force are significant violations of the
Department’s Use of Force Directives rendering termination of Respondent’s employment
appropriate, and I so recommend.
Joycelyn McGeachy-Kuls
Administrative Law Judge
April 27, 2022
SUBMITTED TO:
LOUIS A. MOLINA
Commissioner
19
APPEARANCES:
YVETTE CHANG, ESQ.

YVONNE PRITCHETT, ESQ.
Attorneys for Petitioner
JOEY JACKSON LAW, PLLC.

Attorneys for Respondent
BY: BERNARDA VILLALONA, ESQ.
THE CITY OF NEW YORK

CITY CIVIL SERVICE COMMISSION
In the Matter of the Appeal of

DAVID MCGIBBON
Appellant
-against-
Respondent
Pursuant to Section 76 of the New York

State Civil Service Law
CSC Index No: 2022-0579
DAVID MCGIBBON (“Appellant”) appealed from a determination by the Department of
Correction (“DOC”) finding Appellant guilty of incompetency and/or misconduct and imposing a
penalty of termination following disciplinary proceedings conducted pursuant to Civil Service Law
Section 75 (“CSL Sec. 75”).
DOC charged Appellant, a Correction Officer, with the following:
Charge 1.
Said Officer on or about September 11, 2017, failed to efficiently perform
his duties, engaged in conduct unbecoming an officer and of a nature to bring
discredit to the Department in that he used excessive and impermissible force on
Inmate Edwin Cruz (B&C# 349-17-06947).
Charge 2.
Said Officer on or about September 11, 2017, failed to efficiently perform
his duties and engaged in conduct unbecoming an officer and in a manner to bring
discredit to the Department, in that he submitted a false, misleading, incomplete
and/or inaccurate Use of Force Report regarding the abovementioned incident
involving Inmate Edwin Cruz.
Charge 3.
Said Officer on or about March 31, 2020, at approximately 2050 hours,
inside the AMKC clinic area, failed to efficiently perform his duties and engaged
in conduct unbecoming an officer and failed to maintain a professional demeanor,
1
in that he failed to maintain a safe distance from Inmate Juan Fajardo (B&C# 349-
19-04650) and used unnecessary force by pushing said inmate in the torso area.
Charge 4.
Said Officer on or about March 31, 2020, failed to efficiently perform his
duties and engaged in conduct unbecoming an officer and in a manner to bring
discredit to the Department, in that he submitted a false, misleading, incomplete
and/or inaccurate Use of Force Report regarding the use of force incident involving
Inmate Juan Fajardo (B&C# 349-19-04650) described in Specification #3.
These charges arose from two incidents. On September 11, 2017, Appellant is accused of
using excessive force against Inmate Edwin Cruz after Cruz failed to follow Appellant’s directive
to enter the housing unit. On March 31, 2020, Appellant is accused of using unnecessary force
against Inmate Juan Fajardo in a holding cell. The disciplinary hearing was held at the Office of
Administrative Trials and Hearings (“OATH”) before Administrative Law Judge Jocelyn
McGeachy-Kuls (“ALJ”) over five days in March, April, May, June, and October 2021.
The ALJ’s Report and Recommendation (“R&R”) concluded that DOC had presented a
preponderance of credible evidence to sustain all the charges and recommended that the Appellant
be terminated. In his final decision, the Commissioner adopted the findings of fact and the
recommended penalty. Appellant was terminated effective July 14, 2022.
Appellant filed an appeal with the Civil Service Commission (“Commission”) on July 28,
2022. The Commission requested and received written arguments from both parties. The
Commission has carefully reviewed the record and the arguments on appeal. For the reasons
indicated below, the Commission affirms the findings of fact but modifies the penalty to time
served as unpaid suspension.
The Commission finds that the record supports the ALJ’s determination that Appellant’s
actions on September 11, 2017, constitute serious misconduct and were in violation of DOC’s Use
2
of Force Directive 5006R-C, which was in effect on the day of the incident. 1 The video surveillance
footage of the September 11, 2017 incident supports the ALJ’s finding that Appellant was not
defending himself or another person from what he reasonably believed to be imminent use of
deadly physical force by inmate Cruz. The record also supports the ALJ’s factual finding that
Appellant’s use of force report for this incident was false or misleading in its description of the
type of force he used to Cruz’s neck area. Appellant reported that he tried to secure Cruz using an
''upper control hold to his upper chest area” and that his “control hold” shifted inadvertently to
Cruz's "collar area" rather than stating that he grabbed Cruz by the neck as clearly captured in the
video and the photographs in evidence.
Furthermore, the evidence supports the ALJ’s finding that Appellant’s conduct on March
31, 2020, was in violation of DOC’s Use of Force Directive 5006R-D, which was in effect on the
day of the incident. 2 Although the force used on March 31, 2020 was significantly less serious
than the September 11, 2017 incident, the Commission finds that the record supports the ALJ’s
conclusion that it was unnecessary. The Commission also finds that the record supports the ALJ’s
determination that Appellant’s use of force report for this incident was false and misleading.
Appellant reported that he and the inmate inadvertently bumped into each other, whereas in the
video footage, the contact appears deliberate on the part of Appellant.
Nevertheless, while the record supports the ALJ’s findings of fact, and Appellant’s
misconduct warrants a serious penalty, the particular circumstances of this case support the
1
The Commission notes that Appellant’s charged misconduct on September 11, 2017, occurred prior to the October
27, 2017, effective date of DOC’s Disciplinary Guidelines for Use of Force Incidents, which were adopted pursuant
to the Nunez federal lawsuit. See Nunez v. City of New York, 11 Civ.5845 (LTS) (JCF) (S.D.N.Y. Oct. 21, 2015).
Hereinafter referred to as the “Nunez Disciplinary Guidelines.”
2
In assessing Appellant’s charged misconduct on March 31, 2020, however, the Commission did consider the Nunez
Disciplinary Guidelines. Consistent with the Guidelines, the Commission reasoned as part of its penalty assessment
that termination was not appropriate, since Appellant had no prior record of use of force misconduct or of providing
a false use of force report.
3
conclusion that the penalty should be the maximum suspension short of termination. Penalties for
excessive use of force against an inmate have ranged from a 15-day suspension to termination,
depending on the “employee’s disciplinary record, the extent of force, the degree of provocation,
if any; and the extent of any subsequent deception.” Dep’t of Correction v. Ward, OATH Index
No. 2137/18 at 6 (Dec. 31, 2018) (quoting Dep’t of Correction v. Scott, OATH Index No. 376/06
at 5 (July 10, 2006). In assessing penalty, the Commission is persuaded by OATH precedent which
states that “termination of employment, the most severe penalty, should be reserved for the worst
offenders, where an inmate sustains serious physical injury, the use of force is extreme, the officer
has a significant disciplinary history, or there is an extensive cover-up.” Dep’t of Correction v.
Sinacore, OATH Index No. 1244/18 at 34 (May 4, 2018).
Here, the Commission finds significant mitigation from Appellant’s unblemished
employment record over his fourteen-year tenure as a Correction Officer. In fact, the record
establishes that Appellant is regarded as a valued member of the Department by many colleagues
and supervisors. Appellant has a remarkable attendance record as he went his first six consecutive
years as a Correction Officer without using a sick day.
One year after the September 11, 2017, use of force incident, Appellant was presented with
a “Certificate of Appreciation,” from the Warden of the Anna M. Kross Center (AMKC). This
award was given to Appellant in recognition of his “outstanding performance, professionalism,
and knowledge, which has been crucial in maintaining the success of this command and the ideals
and objectives of the New York City Department of Correction.” Furthermore, the record includes
letters from four Assistant Deputy Wardens, five Captains, and six fellow Correction Officers that
speak to Appellant’s positive character and performance as a Correction Officer. 3 One of the
3
In DOC’s brief, the agency objects to the Commission’s consideration of the character letters. We note that these
letters were submitted as exhibits to Appellant’s letter to DOC Commissioner Molina pursuant to Fogel v. Board of
4
Deputy Wardens wrote that “Officer McGibbon has always been extremely professional,
considerate to the needs of the inmate population and goes the extra mile to resolve issues without
using force.” Another Deputy Warden wrote about Appellant that “[t]he way he conducts himself
is very rare, very approachable, always lending assistance to all ranks/civilians and people in
custody.” Additionally, a Captain wrote that “[t]he department needs more Officers like
McGibbon.”
Further, while both incidents were unnecessary, and Appellant’s actions on September 11,
2017 constitute very serious misconduct, the fact that neither inmate was seriously hurt is a
mitigating factor. Finally, while Appellant’s reporting of both incidents was less than forthcoming,
they do not constitute an extensive coverup as he reported the incidents and admitted the contacts.
In sum, the record supports the conclusion that given Appellant’s otherwise admirable
record and the particular circumstances of this case, the maximum penalty short of termination is
warranted. Therefore, the Commission modifies the penalty from termination to time served.
Appellant’s disciplinary record will reflect this as the maximum period of suspension.
SO ORDERED.
Dated: October 28, 2022
Education. The Commission reviewed the letters as part of the record before the Commissioner when the final
determination was made. DOC’s objection is overruled.
5
CITY OF NEW YORK

CIVIL SERVICE COMMISSION
NANCY G. CHAFFETZ, CHAIR AMANDA M. WISMANS
RUDY WASHINGTON, VICE CHAIR GENERAL COUNSEL
LARRY DAIS www.nyc.gov/csc
CHARLES D. MCFAUL [email protected] JOAN RICHARDS
COMMISSIONERS DIRECTOR OF ADMINISTRATION
NOTICE OF CITY CIVIL SERVICE COMMISSION DECISION ON MOTION FOR

RECONSIDERATION
Peter Troxler, Esq. Date: 06/02/2023

Joey Jackson Law, PLLC. Case No.: 2022-0579
Attorney for Appellant Appeal Type: 76 Disciplinary
[email protected] Appellant: David McGibbon
Position/Title: Correction Officer
Agency: DOC
Attached is a decision in connection with your Civil Service Commission appeal.
This decision constitutes the final decision of the City of New York. For information regarding judicial
review of this decision, you may wish to review the NYS Courts website at http://nycourts.gov/. Please
note that a proceeding pursuant to Article 78 of the New York State Civil Practice Law and Rules must be
commenced within four months after a determination becomes final.
NEW YORK CITY CIVIL SERVICE COMMISSION
c: Solange Grey Yvonne Pritchett, Esq.

Deputy Commissioner of Agency Attorney
Trials & Litigation New York City Department of Correction
[email protected] [email protected]
Andrew Rozo Patrick J. Paul

DOC Agency Attorney Attorney for Respondent
[email protected] Department of Correction
[email protected]
Paul Shechtman Michael Booker

Deputy Commissioner of Legal Matters/General Manager of Trial & Litigation
Counsel at NYC Dept. of Correction [email protected]
[email protected]
THE CITY OF NEW YORK

CITY CIVIL SERVICE COMMISSION
In the Matter of the Appeal of

DAVID MCGIBBON
Appellant
-against-
Respondent
Pursuant to Section 76 of the New York

State Civil Service Law
CSC Index No: 2022-0579
DECISION ON MOTION FOR RECONSIDERATION
DAVID McGIBBON (“Appellant”) appealed from a determination by the Department of
Correction (“DOC”) finding Appellant guilty of incompetency and/or misconduct and imposing a
penalty of termination following disciplinary proceedings conducted pursuant to Civil Service Law
(“CSL”) Section 75. On October 28, 2022, the Civil Service Commission (“Commission”) issued
a decision modifying the penalty of termination to a suspension for time served. The Commission
found that the extraordinary circumstances surrounding the Appellant’s history with the
Department warranted the imposition of a penalty less than termination.
DOC moved for reconsideration of the Commission’s final decision on January 12, 2023,
arguing that Appellant’s misconduct required the maximum penalty of termination. Appellant
submitted a response to DOC’s motion on January 27, 2023. After a preliminary review of the
motion, the Commission determined that more information was necessary to make a ruling.
Accordingly, on March 2, 2023, the Commission issued certified questions to the parties seeking
1
clarification regarding DOC’s Disciplinary Guidelines for Use of Force Incidents. 1 The parties
submitted a series of briefs in response to the certified questions to supplement their respective
arguments.
Commission’s Authority and the Nunez Disciplinary Guidelines
The Civil Service Commission is authorized to hear and decide appeals by “any person
aggrieved by a final determination of guilt and/or a penalty of punishment imposed in a
disciplinary proceeding conducted pursuant to CSL § 75.” 2 The Commission routinely reviews
appeals involving disciplinary penalties imposed by DOC for use of force-related incidents. 3
On October 15, 2015, the United States District Court for the Southern District of New
York signed a consent judgment (the ''Nunez consent judgment") against the City of New York,
which required DOC to implement Disciplinary Guidelines (“Nunez Disciplinary Guidelines” or
“the Guidelines”) to mandate more severe disciplinary penalties for certain acts of excessive force
and failure to report use of force. 4 In its 2020 decision in Kim Royster v Department of Correction 5,
the Commission held that both the OATH ALJ recommending a disciplinary penalty and the DOC
Commissioner, who imposes the discipline, are obligated to apply the Nunez Disciplinary
Guidelines in cases involving misconduct to which the Guidelines apply. 6
1
These Guidelines were adopted pursuant to the Nunez federal lawsuit. See Nunez v. City of New York, 11 Civ.5845
(LTS) (JCF) (S.D.N.Y. Oct. 21, 2015). Hereinafter referred to as the “Nunez Disciplinary Guidelines” or “the
Guidelines” The effective date of the Guidelines was October 27, 2017. Twelfth Nunez Independent Monitor Report,
at 105.
2
60 RCNY § 3-01; see also, Civ. Serv. Law § 76(1) (Lexis 2023); see also, N.Y.C. Charter § 813(d) (Lexis 2023);
see also, Matter of City of New York v. City Civ. Serv. Comm’n., 60 N.Y.2d 436 (1983).
3
Pursuant to Section 76 of the New York State Civil Service Law, a Correction Officer may choose to appeal a DOC
disciplinary penalty determination to either the Commission or “to the court in accordance with the provisions of
article seventy-eight of the civil practice law and rules.” Civ. Serv. Law § 76(1) (Lexis 2023).
4
Kim Royster v. Dept. of Correction, Comm’r Dec. (Sept. 8, 2020), at 3.
5
Kim Royster v. Dept. of Correction, CSC Index No. 2020-0643 (July 9, 2021), affirming Comm’r Dec. (Sept. 8,
2020).
6
Id. at 4.
2
Following its Royster decision, the Commission has consistently considered the Nunez
Disciplinary Guidelines in its review of use of force-related appeals from DOC disciplinary
determinations. 7 Most recently, in Jabari Stewart v. Department of Correction, the Commission
applied the Nunez Disciplinary Guidelines in affirming Commissioner Molina’s termination of a
10-year Correction Officer for using excessive and unnecessary force in three separate incidents
and submitting false and misleading use of force reports regarding two of those incidents. 8
Although C.O. Stewart had a relatively lengthy tenure and no prior discipline, the Commission
found termination to be an appropriate penalty in light of the Nunez Disciplinary Guidelines. 9
We note that a request to reconsider a final decision is extraordinary relief that is
infrequently granted. However, the Commission now finds that an element of the reasoning in its
October 28, 2022 decision pertaining to the application of the Nunez Disciplinary Guidelines
warrants reconsideration and clarification. The decision relied on a misapplication of the
Guidelines as it related to Appellant’s charges of deliberately providing false information in a use
of force report. We therefore grant the motion to reconsider and revise our October 28, 2022
decision.
After reconsideration, the Commission finds that Appellant’s first false use of force report
charge 10 constitutes a “prior record” under Section 2 of the Nunez Disciplinary Guidelines, and
7
See Jonathan Douglas v. Dept. of Correction, CSC Index No. 2022-0344 (Nov. 7, 2022), affirming Comm’r Dec.
(Apr. 20, 2022) (The Commission affirmed the termination of a 5-year Correction Officer with no prior disciplinary
history, in light of the Nunez Disciplinary Guidelines, for an excessive use of force incident.); see also, Benny Locicero
v. Dept. of Correction, CSC Index No. 2022-0714 (Jan. 25, 2023), affirming Comm’r Dec. (Sep. 29, 2022) (The
Commission affirmed the termination of a 7-year Correction Officer, in light of the Nunez Disciplinary Guidelines,
for an excessive use of force incident); see also, Joel Vanterpool v. Dept. of Correction, CSC Index No. 2022-0763
(Feb. 24, 2022), affirming Comm’r Dec. (Oct. 20, 2022) (The Commission affirmed the termination of a 9-year
Correction Officer, in light of the Nunez Disciplinary Guidelines, for using excessive force and submitting false and
misleading use of force reports.).
8
Jabari Stewart v. Dept. of Correction, CSC Index No. 2023-0058 (Apr. 20, 2023), affirming Comm’r Dec. (Jan. 3,
2023).
9
See id.
10
Appellant committed this offense on September 11, 2017.
3
that because two false use of force report violations were sustained in the underlying disciplinary
proceeding, the Guidelines call for a presumptive penalty of termination. 11 The Commission
further finds, however, that the extraordinary and exceptionally rare nature of Appellant’s record
with the Department overcomes the presumptive penalty in this case. As a result, the final
disposition in the Commission’s October 28, 2022, decision remains unchanged.
DOC’s Arguments in Support of the Motion
In support of its motion for reconsideration, DOC argued, for the first time, that “the [Nunez
Disciplinary] Guidelines treat guilty findings on two false reporting charges adjudicated in one
proceeding as triggering the ‘2nd offense’ penalty when the offenses arise from separate
incidents.” 12 DOC therefore asserted that Appellant’s first false use of force report incident and
his second false use of force report incident should collectively carry the “2nd offense” penalty of
termination. 13 Additionally, DOC argued that the phrase “prior similar record” in Section 2 of the
Nunez Disciplinary Guidelines includes instances of false use of force report misconduct that
occurred prior to the October 27, 2017 effective date of the Guidelines. 14 In support of its
argument, DOC asserted that “[w]hen the Guidelines were promulgated, an officer,
like…[Appellant], who prior to the effective date had knowingly submitted a false report in a use
of force incident, was on notice that, if he did it again, he would be treated as a recidivist. (emphasis
added)” 15 DOC relied on this argument to counter an assertion by Appellant that such an
11
On September 11, 2017, Appellant was found to have submitted a false use of force report in connection with an
incident involving excessive force against Inmate Edwin Cruz after Cruz failed to follow Appellant’s directive to enter
the housing unit. Hereinafter referred to as “the Cruz incident.” On March 31, 2020, Appellant was found to have
submitted a false use of force report in connection with an incident involving unnecessary force against Inmate Juan
Fajardo in a holding cell. Hereinafter referred to as “the Fajardo incident.”
12
DOC’s response to the Commission’s certified questions, dated March 9, 2023, at 2-3.
13
See DOC’s motion for reconsideration, dated January 12, 2023, at 10 n.6; see also DOC’s response to the
Commission’s certified questions, dated March 9, 2023, at 2-3.
14
DOC’s response to the Commission’s certified questions, dated March 9, 2023, at 2.
15
Id.
4
interpretation of “prior similar record” would violate notions of fair notice. 16 DOC argued that,
following his charges on February 4, 2019 for using excessive force and submitting a false use of
force report in connection with the Cruz incident, Appellant was on notice that further similar
misconduct could subject him to termination. 17 Furthermore, DOC noted that Appellant was
trained on the Nunez Disciplinary Guidelines in February 2017, before the Cruz incident
occurred. 18
In its motion papers, DOC stated that “[t]he Guidelines do not limit what can be a
mitigating factor in a particular case and that “[a]n employee’s length of sentence, commendations,
disciplinary history, and prior use of sick time and leave are among the ‘mitigating factors’ that
the Commissioner may consider in determining appropriate discipline.” 19 However, DOC argued
that “the [G]uidelines establish presumptive discipline and that deviations are meant to be the
exception.” 20 DOC concluded that the mitigation in this case is insufficient to set aside the
presumptive penalty set by the Guidelines, especially here, where Appellant used serious force
against a passive inmate. 21
Appellant’s Arguments Opposing the Motion
In opposing the motion, Appellant argued, inter alia, that two different false use of force
report charges adjudicated in one proceeding should not trigger the “2nd offense” penalty under
16
Appellant noted that the Constitution prohibits the passage of ex post facto laws, a category including, “[e]very law
that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.”
Peugh, 569 U.S. at 533 (quoting Calder v. Bull, 3 Dall. 386, 390 (1798)). Appellant therefore argued that considering
misconduct committed before the effective date of the Guidelines would deprive him of fair notice. The Commission
notes, however, that "[i]t is beyond dispute that the ex post facto clause applies only to criminal cases." In re Various
Grand Jury Subpoenas, 235 F. Supp. 3d 472, 481 (SDNY 2017) (citing to United States v. D.K.G. Appaloosas, Inc.,
829 F.2d 532, 540 (5th Cir. 1987); see also Plaza Health Labs., Inc. v. Perales, 702 F. Supp. 86, 89-90 (S.D.N.Y.
1989)).
17
DOC’s sur-reply to Appellant’s response, dated March 30, 2023, at 1.
18
Id.
19
DOC’s response to the Commission’s certified questions, dated March 9, 2023, at 3.
20
Id.
21
Referring to the Cruz incident. See id.
5
Section 2 of the Nunez Disciplinary Guidelines when both charges are sustained, because it would
deprive Appellant of the opportunity for “progressive discipline.” 22 Appellant asserted that “[a]n
officer cannot be granted the opportunity to learn from the alleged misconduct unless an officer is
on notice that any misconduct occurred.” 23 Appellant argued that he did not have fair notice of the
misconduct due to “the fact that multiple charges…[were] adjudicated in one proceeding…due to
DOC’s carelessness for not calendaring cases when the violation ‘occurs’ i.e., the date of the
charged misconduct.” 24 Additionally, Appellant argued that the phrase “prior similar record” in
Section 2 of the Nunez Disciplinary Guidelines only includes false use of force reports that
occurred after October 27, 2017. 25 As is discussed above, Appellant asserted that to conclude
otherwise would violate notions of fair notice. 26
In addressing DOC’s position regarding mitigation under the Guidelines, Appellant argued
that the “Commission properly found that significant mitigation existed so as to justify the
modification of the penalty from termination to time served.” 27 Appellant asserted that “an
employee's tenure, commendations, military service, disciplinary history, and prior use of time and
leave are among the ‘mitigating factors’ that the Commissioner may consider in determining
appropriate discipline.” 28 Here, Appellant argued that the Commission’s consideration of
Appellant’s 14-year tenure, his unblemished disciplinary history, his impressive attendance record
throughout his DOC career, his commendations, and the letters from several members of the
22
See Appellant’s response to the Commission’s certified questions, dated March 24, 2023, at 3.
23
Id. at 3-4.
24
Id. at 3.
25
Id. at 2.
26
See Id.
27
Appellant’s response to DOC’s motion for reconsideration, dated January 27, 2023, at 5.
28
Appellant’s response to the Commission’s certified questions, dated March 24, 2023, at 4.
6
Department speaking to his positive character and performance as a Correction Officer,
collectively served as mitigation significant enough to warrant a penalty short of termination. 29
Reconsideration and Clarification of the Commission’s Prior Decision
The Commission has considered the full record as expanded by the arguments submitted
on the motion for reconsideration and finds that its reasoning regarding multiple false use of force
report violations warrants reconsideration. The Commission hereby amends its finding regarding
the Appellant’s second false use of force report and finds that he is subject to a presumption of
termination based on two false reports.
“Prior Similar Record” of False Use of Force Reporting
The Commission modifies its reasoning as it relates to the application of the Nunez
Disciplinary Guidelines to Appellant’s charges of deliberately providing false information in a use
of force report. In the October 28, 2022 decision, the Commission considered the Nunez
Disciplinary Guidelines in assessing the Fajardo incident, but reasoned that “termination was not
appropriate, since Appellant had no prior record of use of force misconduct or of providing a false
use of force report.” 30 The Commission notes that the drafters of the Guidelines chose not to
include language limiting the time frame of what would constitute a “prior similar record” in the
“Deliberately Providing False Information” section 31 despite explicitly limiting the scope of “prior
similar record” in other areas of the Guidelines. 32 Further, the Nunez Disciplinary Guidelines do
not specifically define the phrase “prior similar record.” Accordingly, the Commission adopts the
29
See Appellant’s response to DOC’s motion for reconsideration, dated January 27, 2023, at 5-6.
30
David McGibbon v. Dept. of Correction, CSC Index No. 2022-0579 (Oct. 28, 2022), modifying on penalty Comm’r
Dec. (July 1, 2022) (“Original Commission decision”), at 3 n.2.
31
Nunez Disciplinary Guidelines, at 3.
32
See Id. at 4-5 nn.5-6, limiting the look-back period to 10 years from the date of the incident for use of force related
offenses that resulted in a “Negotiated Plea Agreement.”
7
plain language meaning of “prior similar record,” and interprets the phrase to include Appellant’s
first false use of force report, even though it was adjudicated in the same proceeding as the second
false use of force report. We further find that Appellant was on notice when he was served with
disciplinary charges for filing a false use of force report in the Cruz incident that a second false
report charge could result in his termination. Finally, had the incidents of false reporting been close
in time and adjudicated together, it would be nonsensical and inconsistent with settled civil service
law for DOC to be limited to imposing discipline for one incident, as Appellant’s counsel argues.
Therefore, the Commission modifies its October 28, 2022 decision to reflect a finding that
Appellant’s two sustained false use of force report violations create a presumption of termination
under the Nunez Disciplinary Guidelines. Section 2 of the Guidelines provides that if an officer
commits a second false use of force report, the minimum penalty is termination. Here, Appellant’s
false use of force report from September 11, 2017, was his first offense. His false use of force
report from March 31, 2020, serves as the “2nd offense” resulting in a presumption of termination
in this case.
Appellant’s Mitigation Overcomes the Presumption of Termination
Despite the presumption of termination, the Commission finds that the mitigation in this
case warrants a penalty of time served. The preamble to the Nunez Disciplinary Guidelines
provides that Use of Force-related misconduct “must be evaluated based on the specific facts
evidencing the nature of the misconduct and a review of any mitigating and/or aggravating
factors.” 33 In DOC’s response to the Commission’s certified questions, it confirmed that the
Commission is permitted to consider an employee’s tenure, commendations, disciplinary history,
33
Nunez Disciplinary Guidelines, at 1.
8
and prior use of sick time and leave as mitigating factors when assessing the appropriate penalty
in a disciplinary determination. In fact, DOC indicated that the Nunez Disciplinary Guidelines do
not impose restrictions on what can be considered as a mitigating factor, but that mitigation in
cases where there is a presumption of termination should be the exception. The Commission finds
that this case is that rare exception in which there is sufficient mitigation to overcome the
presumptive penalty of termination. 34
As was stated in the Commission’s prior decision, the Appellant has an exemplary and
unblemished employment record over his fourteen-year tenure as a Correction Officer. 35
Appellant’s attendance record is extremely rare for the Department: he went his first six
consecutive years as a Correction Officer without using a single sick day. 36 In addition, one year
after the Cruz incident, Appellant was presented with a “Certificate of Appreciation,” from the
Warden of the Anna M. Kross Center (AMKC) 37 in recognition of his “outstanding performance,
professionalism, and knowledge, which has been crucial in maintaining the success of this
command and the ideals and objectives of the New York City Department of Correction.”38
Furthermore, letters from four Assistant Deputy Wardens, five Captains, and six fellow Correction
Officers speak to Appellant’s positive character and performance as a Correction Officer. 39 One
of the Deputy Wardens wrote that “Officer McGibbon has always been extremely professional,
considerate to the needs of the inmate population and goes the extra mile to resolve issues without
34
In its October 28, 2022, decision, the Commission found that “the fact that neither inmate was seriously hurt is a
mitigating factor.” Commission’s October 28, 2022 decision, at 5. While lack of serious injury to either inmate can
have evidentiary value in such a disciplinary proceeding, the Commission notes that lack of serious injury to either
inmate is irrelevant to evaluation of Appellant’s penalty.
35
Original Commission decision, at 4.
36
Id.
37
Id.
38
Id.
39
Id.
9
using force.” 40 Another Deputy Warden wrote that “[t]he way [Appellant] conducts himself is very
rare, very approachable, always lending assistance to all ranks/civilians and people in custody.” 41
Additionally, a Captain wrote that “[t]he department needs more Officers like McGibbon.” 42
The Commission notes that an employee’s lack of prior disciplinary history alone,
regardless of the length of tenure, would not be sufficient to overcome the presumption of
termination in a case involving a “2nd offense” of submitting a false use of force report. Here,
however, Appellant’s record overall is truly exceptional, such that it warrants a penalty short of
termination. Nevertheless, Appellant’s misconduct was indeed serious, and his disciplinary record
will now reflect that he served the maximum penalty short of termination, which places him on
notice that any further misconduct of this nature will subject him to termination.
Therefore, the Commission upholds its original determination to modify the penalty from
termination to time served. Appellant’s disciplinary record will reflect this as the maximum period
of suspension.
SO ORDERED.
Dated: June 2, 2023
40
Original Commission decision, at 4-5.
41
Id. at 5.
42
Id.
10

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Case 1:11-cv-05845-LTS-JCF Document 557 Filed 07/10/23 Page 1 of 288

July 10, 2023

THE NUNEZ MONITORING TEAM

Kelly Dedel, Ph.D.

Security, Violence, and Use Of Force...................................................................12

Leadership, Supervision, and Training ...............................................................69

Uniform Staffing Practices ....................................................................................89

Management of Incarcerated Individuals .........................................................109

Staff Accountability – Identifying and Addressing Misconduct .....................127

DOC’s Management Structure Management of Nunez Court Orders ..........142

Overarching Initiatives Related to Reform .......................................................166

Conclusion and Monitor’s Assessment

Appendix A: Data ................................................................................................180

Outcome of Intake Investigations ........................................................................................ 198

Appendix B: Images of May 26, 2023 Incident #1 ............................................211

Assessment of Compliance pursuant to § G ¶ 6 of the Action Plan.

is what appears to be the Department’s inability or unwillingness to identify (and therefore

correctional skills to improve practice.

work in the jails.

Role of the Monitor & Reporting

a Monitor’s role is to provide a neutral and independent assessment of compliance, which is

compliance [ . . .] and examining any supporting documentation where applicable[.]” Further, as

more detailed information.

Background of Nunez Court Orders

concerns with the backlog of disciplinary cases involving UOF Violations.” 8

fully and faithfully implementing this Action Plan with integrity.” 10

commitments and demonstrate their ability to make urgently needed changes.” 11

Department to implement systemwide remedial actions to address operational deficiencies noted

Monitoring Team’s Assessment of Progress

of any analysis, relegating a nuanced, complex, qualitative assessment of progress towards

is not practical or advisable. Data—whether qualitative or quantitative—cannot be interpreted in

Action Plan’s requirements.

reasonable number of “unnecessary or excessive uses of force” nor an “appropriate” rate at

performance with the operation of other jails and correctional systems.

merely becomes a burdensome and bureaucratic distraction.

crisis that exacerbated decades-long mismanagement of the Department’s most important

by which all reform must be measured.

The array of quantitative metrics, qualitative assessments, and an appreciation of

Organization of the Report

• Security, Violence, and Use of Force

The report includes the following appendices:

data is not otherwise provided in the report.

Conclusion of this report.

• Appendix G includes a disciplinary decision by OATH and the subsequent decisions by

Civil Service Commission described in the Staff Accountability – Identifying and

Addressing Misconduct section of the report.

SECURITY, VIOLENCE, AND USE OF FORCE

uninterrupted access to their victims.

of the basic security function of the jails.

Appendix A of this report.

Unnecessary and Excessive Force

reasonableness of the force used in each incident.

• Monitoring Team Assessment of Use of Force Incidents: The Monitoring Team’s

unnecessary. The Monitoring Team’s qualitative assessment of recent use of force

the time the Consent Judgment went into effect in 2016.

• Consultation on UOF Related Policies: The Department has inexplicably failed to

refusals. Second, as discussed in the Management of People in Custody section of this

to find that misconduct that is unidentified and unaddressed remains a consistent

during just a five-month period, despite the Department’s ongoing inadequacies in