DRAFT, 03.01.14

SCOPE
Following the death of Bridgewater State Hospital (BSH) patient
Joshua Messier on May 4, 2009, the Department of Correction (“DOC”)
took certain steps to determine whether the officers involved in the events
immediately preceding his death acted appropriately. My review considers
whether those steps were taken properly.
The basis for this report is a series of interviews and a review of
documents related to the incident. Interviews were conducted with the
following current and former DOC managers:
1.
2.
3.
4.
5.
6.
7.
8.
9.

Commissioner Luis Spencer
Former DOC Commissioner Harold Clarke
Deputy Commissioner Peter Pepe
Assistant Deputy Commissioner Karen Hetherson
DOC General Counsel Nancy White
BSH Supervising Counsel Michael Cohen
BSH Superintendent Robert Murphy
Director of Special Operations Steven Ayala
BSH Deputy Superintendent Pat DiPalo

This report consists of a timeline of pertinent events, an analysis of
key issues, and relevant conclusions and findings.

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DRAFT, 03.01.14

EXECUTIVE SUMMARY
Joshua Messier died at BSH on May 4, 2009. Immediately thereafter,
the State Police and the Plymouth County District Attorney’s Office began
an investigation into the circumstances surrounding his death. DOC
delayed its Internal Affairs Unit (“IAU”) investigation into the death while the
criminal investigation was pending. The criminal investigation was ongoing
in February 2010, when the Office of the Chief Medical Examiner
concluded that the manner of Messier’s death was a “homicide” and that its
cause was “[c]ardiopulmonary arrest during physical restraint, with blunt
impact of the head and compression of chest, while in agitated state.”
Given that DOC had postponed its internal investigation pending the
outcome of the criminal investigation, senior DOC leadership should not
have commented on the acts of the correction officers while the criminal
investigation was pending (except as asked to participate in that
investigation). At least one document indicates that then-Commissioner
Harold Clarke did not maintain silence on this issue. Minutes of a February
9, 2010 DOC Executive Staff meeting indicate that Commissioner Clarke
took “exception” to the OCME’s determination that Messier’s death was a
homicide because “everything was appropriately and professionally done.”
When interviewed, Commissioner Clarke indicated that he felt it was
important to express support for those involved based on his belief that
they did not act with any type of criminal intent. I do not question the
sincerity of that belief. But given that DOC had not yet evaluated the
actions of the correction officers on the night in question, comments from
senior leadership regarding the appropriateness of those actions risked
influencing the subordinates ultimately charged with that evaluation.
By early 2011, the DOC became aware that the criminal investigation
into this matter was closed. At that time, the DOC’s IAU began an
investigation into Messier’s death. The investigation focused on two
distinct uses of force by correction officers against Messier. The first took
place in BSH Housing Unit B-1. That evening, after returning from a visit
with his mother, Messier spontaneously assaulted Correction Officer
Christopher Rego in BSH Housing Unit B-1. Thereafter, multiple officers
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DRAFT, 03.01.14

were needed to restrain him. The IAU investigation found no fault with that
restraint.
Then, Messier was escorted to BSH’s Intensive Treatment Unit.
There, the correction officers attempted to place Messier in four-point
restraints. Per the IAU investigation, during the restraint process, two
correction officers — specifically Correction Officer Derek Howard and
Correction Officer John Raposo — “applied downward pressure to the back
of Messier while he was being restrained.” Those actions violated DOC
Use of Force policy 103 CMR 6501. Additionally, the IAU investigation
should have specifically addressed the actions (or inactions) of Acting
Lieutenant George Billadeau.2 Acting Lieutenant Billadeau was in the room
while Messier was restrained, and supervised what the IAU found to be a
violation of DOC policy, but he did not intervene.
A report of the IAU investigation was issued on May 25, 2011.
Approximately one week later, the report was reviewed by Assistant Deputy
Commissioner Karen Hetherson. As documented, Hetherson’s review was
insubstantial. She concluded that “[b]ased on the circumstances
surrounding this investigation, no misconduct was found against staff.”
When asked to elaborate as to the basis of her decision, she indicated that,
in her view, the correction officers involved did not “mean to cause
[Messier] any harm.” The proper inquiry was whether any DOC policies
were violated during the use of force and if so, by whom. The IAU
investigation answered those questions as to Correction Officers Howard
and Raposo. Hetherson was unable to articulate a basis for departure from
that conclusion. Hetherson also had the power to return the IA
investigation to the Unit for further findings. She should have done so,
particularly regarding the actions (or inactions) of Sergeant Billadeau.
While the criminal investigation was pending, the BSH
Superintendent (and, on one occasion Acting Superintendent) requested





























































1


This

Use of Force policy is cite specific to Bridgewater State Hospital. The language
prohibiting the placement of weight on an inmate’s back during restrain is identical to
the language of 103 CMR 505, which is DOC’s general Use of Force policy and applies
to all institutions.
2

It appears that, on the night in question, Billadeau — who, at the time, held the rank of
Sergeant — had been assigned as Acting BSH Sector One Lieutenant. Accordingly, he
will be referenced in this report as an Acting Lieutenant.
3




DRAFT, 03.01.14

extensions of time to submit the Use of Force Package3 to the Special
Operations Division (“SOD”) of DOC, which was charged with reviewing it.
Together with other documents, those reports constituted a Use of Force
package. Following the delay in submitting the Use of Force package until
the criminal investigation was concluded, the package languished,
unsubmitted, until December 7, 2012 when it was sent to SOD. On
January 11, 2013, SOD Director Steven Ayala rejected the Use of Force
package for procedural and substantive reasons. Among other things, he
concluded that “staff members involved in the incident” did not comport with
DOC policy, including the prohibition on applying force to a patient’s back
while that patient is restrained and the requirement that the staff shall
always maintain observation of a restrained patient to recognize breathing
difficulties or a loss of consciousness. His rejection also noted that the
report should have been signed by Acting Lieutenant Billadeau but was not.
No material actions were taken following SOD Director Ayala’s
rejection of the Use of Force package. DOC improperly failed to reconcile
the basis for rejection with the executive review of the IAU report (which
had found no misconduct). There was not then nor is there now DOC
policy that addresses how such discrepancies should be reconciled. Upon
receipt of this report, Commissioner Spencer should immediately develop
such a policy.
At present, Assistant Deputy Commissioner Hetherson’s executive
review of the IAU report must be disregarded. It is unsupported and, when
offered a chance to explain her decision it became clear that her decision
was badly flawed. Accordingly, the IAU investigation finding that Correction
Officers Howard and Raposo improperly applied force to Messier’s back
stands; that finding is further supported by the rejection of the Use of Force
package. This violation of DOC policy is sufficient to warrant the imposition
of discipline to be determined consistent with the DOC hearing process.4
Until that process is complete, Correction Officers Howard and Raposo
should be placed on leave.





























































3

A Use of Force Package is comprised of official forms, incident reports, records, and
other documents relative to the use of force incident.
4

Pursuant to state law, i.e., G.L. c. 31, § 41, and DOC policies based upon it, no
disciplinary action exceeding a five-day suspension may be taken without a hearing and
the opportunity for the correction officers to present conflicting or mitigating evidence.
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DRAFT, 03.01.14

During this review, I have concluded that the IAU report is insufficient
in as much as it failed to meaningfully address the role of Acting Lieutenant
Billadeau in the events of May 4, 2009. The report should be returned to
the IAU to determine whether — on the basis of this report, the relevant
documents, the video tape of the events in question, and any other
materials the IAU deems relevant — it is appropriate for Commissioner
Spencer to begin the disciplinary process against Acting Lieutenant
Billadeau on the current record or, alternatively, whether further
investigation is needed. Until a final decision is made concerning any
discipline to be imposed on Acting Lieutenant Billadeau, he should be
placed on leave.
This reporting process has given rise to certain additional concerns
regarding whether DOC complied with its own reporting and investigatory
requirements following Messier’s death, i.e., those reporting and
investigatory requirements distinct from the disciplinary process. Spencer
will return to me a full accounting as to whether those requirements were
met in the aftermath of Messier’s death and, if any were not, a full
explanation for the omission together with concrete steps to prevent any
such omissions in the future.

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DRAFT, 03.01.14

SEQUENCE OF EVENTS

2009



May 4, 2009

Joshua Messier dies following a use of force during
the application of Posey restraints.

May 4-5, 2009

Reports from BSH restraint team, medical staff and
other relevant records are submitted to BSH
Superintendent Karen Bergeron

May 5, 2009

Autopsy performed by the Office of the Chief Medical
Examiner

May 5, 2009

Crime Prevention and Control Unit (CPAC) of the
Plymouth County District Attorney’s
Office commences its investigation

May 20, 2009

BSH Superintendent Karen Bergeron makes a written
request to extend the time for submission of the Use
of Force package to the Special Operations Division
(SOD)
Reason: “This Use of Force incident is currently under
review by the State Police and Plymouth County D.A.’s
Office due to the death of the patient following a Code 99
at the conclusion of the UOF. The timetable for this
investigation and any other subsequent investigation by
the Office of Investigative Services is not known at this
time.”
Response: Authorized for 6 months by Deputy
Commissioner for Administrative Services Ron Duval.

July 6, 2009

Assistant Deputy Commissioner Terre Marshall
grants a request by Director of Quality Improvement
Kenneth Nelson to accept a BSH Root Cause

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DRAFT, 03.01.14

Analysis “as the equivalency of the mortality review”
that is mandated by DOC regulations.
July 9, 2009

BSH submits its Root Cause Analysis (RCA) to The
Joint Commission
Explanation: This 24-question analysis is required by The
Joint Commission, which accredits the DOC.5 Its purpose
is to drill down into the root causes of a “Sentinel Event”
e.g., Messier’s death. The root cause analysis focuses
on systems and processes, rather than individual
performance. The goal is to identify those causes,
identify strategies for risk reduction and create an action
plan, successful implementation of which is then
monitored by The Joint Commission.

Nov. 18, 2009

Second request for extension of time for submission
of Use of Force package made by Acting BSH
Superintendent Lisa Mitchell
Reason: “This Use of Force incident is currently under
review by the State Police and Plymouth County D.A.’s
Office due to the death of the patient following a Code 99
at the conclusion of the UOF. The timetable for this
investigation and any other subsequent investigation by
the Office of Investigative Services is not known at this
time.” Previous request acknowledged.
Response: Authorized for 90 days by Deputy
Commissioner for Administrative Services Ron Duval.






























































5

The Joint Commission (TJC) describes itself as “an independent, not-for-profit
organization [that] accredits and certifies more than 20,000 health care organizations
and programs in the United States. Joint Commission accreditation and certification is
recognized nationwide as a symbol of quality that reflects an organization’s commitment
to meeting certain performance standards.” The Joint Commission was founded in
1951 and is the nation's oldest and largest standards-setting and accrediting body in
healthcare.
The Joint Commission is governed by a 32-member Board of Commissioners
that includes physicians, administrators, nurses, employers, a labor representative,
quality experts, a consumer advocate and educators. It provides accreditation services
for the a number of different types health care organizations, including general,
psychiatric, children’s and rehabilitation hospitals.

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DRAFT, 03.01.14

Dec. 22, 2009

The Joint Commission accepts the DOC’s RCA and
action plan.
BSH is notified that follow-up monitoring will commence in
accordance with Sentinel Event Policy. Follow-up
monitoring will determine whether the improvements
planned as a result of the root cause analysis have been
successful and sustained.

2010
Feb. 3, 2010

Autopsy report completed
Cause of Death: Cardiopulmonary arrest during physical
restraint, with blunt impact of the head and compression
of chest, while in agitated state.
Manner of Death: Homicide (restrained by correction
officers during agitated state).

Feb. 9, 2010

Commissioner Clarke comments on the OCME’s
autopsy report during an Executive Staff Meeting, and
indicates his view that “everything was appropriately
and professionally done”

Feb. 23, 2010

Third request to extend submission time for the UOF
package is made by BSH Superintendent Karen
Bergeron
Reason: “This Use of Force incident is currently under
review by the State Police and Plymouth County D.A.’s
Office due to the death of the patient following a Code 99
at the conclusion of the UOF. The timetable for this
investigation and any other subsequent investigation by
the Office of Investigative Services is not known at this
time.” Previous request acknowledged.
Response: Authorized for 90 days by Deputy
Commissioner for Administrative Services Ron Duval.

May 4, 2010

Per a Statement of the Plymouth County District
Attorney’s Office, a prosecutor and CPAC
Officers meet with Medical Examiner Mindy Hull re:
the Messier autopsy
8





DRAFT, 03.01.14

May 24, 2010

Fourth request to extend submission time for the
UOF package is made by BSH Superintendent Robert
Murphy.
Reason: “This Use of Force incident is currently under
review by the State Police and Plymouth County D.A.’s
Office due to the death of the patient following a Code 99
at the conclusion of the UOF. The timetable for this
investigation and any other subsequent investigation by
the Office of Investigative Services is not known at this
time.” Previous request acknowledged.
Response: Authorized for 90 days by Deputy
Commissioner for Administrative Services Ron Duval.

May 28, 2010

Deputy Commissioner of Administrative Services Ron
Duval retires.

May 29, 2010

Acting Deputy Commissioner Karen Hetherson is
made Acting Deputy Commissioner for
Administrative Services.

June 10, 2010

Acting Deputy Commissioner Karen Hetherson
assumes responsibility for reviewing all IA reports.

June 30, 2010

DOC notified by The Joint Commission that the
agency is 100% compliant with all recommendations
of The Joint Commission.

Aug. 3, 2010

Anne Scott Blouin, RN, Ph.D. sends BSH
Superintendent Robert Murphy the results of The
Joint Commission’s Sentinel Event Measure(s) of
Success. (SE-MOS) DOC meets or exceeds all action
plan recommendations and The Joint Commission
determines no further action is required.

Aug. 30, 2010

Fifth and final request to extend submission time for
the UOF package is made by Acting Superintendent
Pat DiPalo, who signs on behalf of Superintendent
Robert Murphy.
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DRAFT, 03.01.14

Reason: “This Use of Force incident is currently under
review by the State Police and Plymouth County D.A.’s
Office due to the death of the patient following a Code 99
at the conclusion of the UOF. The timetable for this
investigation and any other subsequent investigation by
the Office of Investigative Services is not known at this
time.”
NOTE: In acknowledging that there has been a previous
request for extension, this language appears: “This Use of
Force has been referred to the DOS Legal Office for a
determination if the Use of Force Package needs to be
completed or not. As of this date, no determination has
been made.” DOS refers to the Director of Security at
BSH, which does not have a legal office, and the DOC
legal office indicates that it never received the package.
When interviewed, Acting Superintendent Pat DiPalo
indicated that the phrase was a transcription error, and
that he intended to reference the Special Operations
Division (“SOD”) office.
Response: Request for indefinite extension granted by
Prison Division Deputy Commissioner James Bender.
Sept. 1, 2010

Date of last report in the CPAC Unit investigation.

Nov. 13, 2010

Commissioner Clarke resigns

Nov. 14, 2010

Ron Duval returns to DOC as Acting Commissioner

2011
Jan. 14, 2011

Luis Spencer is appointed Acting Commissioner

March 21, 2011 IAU Sergeant Donald Perry’s log entry states that he
receives the CPAC investigation into Messier’s death.
It appears that at some point prior to this date, the
Plymouth County District Attorney’s Office
determined that it would not present the case to a
grand jury

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DRAFT, 03.01.14

March 23, 2011 The IAU investigation references this date as the date
when IAU Sergeant Donald Perry receives the CPAC
reports composed during its investigation into
Messier’s death
April 11, 2011

Luis Spencer is appointed Commissioner

May 25, 2011

DOC Internal Affairs Unit completes its investigation
Finding: No violation of DOC policy in the B Building use
of force. Violation of Use of Force policy 103 CMR 505 in
the ITU use of force by Officers Howard and Raposo
because they applied weight to Messier’s back while
attempting to restrain him.
The IA investigation does not explore and makes no
finding as to whether Acting Lieutenant George Billadeau,
who supervised the restraint team, violated the DOC Use
of Force Policy by failing to intervene.

June 1, 2011

BSH Superintendent Karen Bergeron retires

June 3, 2011

Executive Review and Decision of the IAU
investigation.
Finding: Assistant Deputy Commissioner Karen
Hetherson determines: “Based on the circumstances
surrounding this investigation, no misconduct was found
against staff. However, it is recommended that
responding staff, specifically Officers Howard and
Rapos[o], attend re-training in the use of restraints.”

July 14, 2011

MA Disabled Persons Protection Commission report
Concludes conduct of COs Raposo and Howard
constituted abuse.

July 26, 2011

Officer Derek Howard receives training in Four Point
Restraints.

Nov. 20, 2011

Commissioner Spencer reverses the decision to have
the Deputy Commissioner for Administrative Services
review all IAU reports.
11





DRAFT, 03.01.14

2012
April 30, 2012

Officer John Raposo receives training in Use of
Force/Restraints.

May 7, 2012

Officer Derek Howard receives training in Use of
Force/Restraints.

May-June 2012 Litigation filed in state and federal courts.
Late Nov. 2012 In conversation, Deputy Commissioner Peter Pepe
asks SOD Director Steve Ayala what happened with
his review of the Use of Force Package. Ayala tells
him that it was not submitted to SOD.
Ayala orders BSH Superintendent Robert Murphy to
submit it immediately and Pepe instructs Ayala to
prioritize SOD’s review.
Dec. 7, 2012

Use of Force package submitted by BSH
Superintendent Robert Murphy to SOD

2013
Jan. 11, 2013




Use of Force Package is rejected by Special
Operations Division
Reason: SOD Director Steven Ayala cites violation of Use
of Force Policy (103 CMR 505) and failure of (then)
Acting Lieutenant George Billadeau and BSH
Superintendent Robert Murphy to properly sign off on the
package.

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DRAFT, 03.01.14

ANALYSIS
I.

BACKGROUND

Bridgewater State Hospital (BSH) is an accredited medium security
structure that sits on a campus in the Southern Sector of the Department of
Correction’s facilities. Though classified as a medium security facility, the
DOC considers it a maximum security facility due to the volatility of its
population and the diverse reasons that serve as a basis for commitment.6
BSH provides court ordered evaluations and treatment services for civilly
committed adult men who, due to mental illness, need hospitalization in a
strict security setting.
The chain of command at BSH does not differ from that of other DOC
facilities. DOC executive leadership is primarily comprised of the
Commissioner, General Counsel, three Deputy Commissioners and a
number of Assistant Deputy Commissioners for two operational sectors and
many administrative divisions. At the top of the daily operations chain for
each facility is an Assistant Deputy Commissioner, who is responsible for
all facilities in his/her sector, and a Superintendent, who has responsibility
for a single facility within that sector. The ranks descend from there to
captains, lieutenants, sergeants and officers, all of whom are members of
the Massachusetts Correction Officers Federation Union (MCOFU)
collective bargaining unit.
Pursuant to a decision made by a former BSH Superintendent in
2003, all decisions regarding clinical care, medication and the use of
restraints and seclusion are made by or must be authorized by medical
staff. The Medical Director at BSH is appointed by the Commissioner and
is a DOC employee. The current medical vendor, MHM has been providing
mental health services to BSH since 2007. The vendor and all medical
staff report to the Medical Director.





























































6

Persons are committed to BSH for competency and criminal responsibility evaluations,
evaluations related ascertain their ability to serve a sentence in a penal environment, for
additional treatment or following a finding of not guilty by reason of insanity. They may
be charged with crimes ranging from minor misdemeanors to major felonies
13




DRAFT, 03.01.14

II.

ANALYSIS OF KEY EVENTS
A.

DOC Response to OCME findings

Dr. Mindy Hull of the Office of the Medical Examiner performed
Joshua Messier’s autopsy and released preliminary findings on May 5,
2009. The autopsy report was completed on February 2, 2010.
Specifically, she found the cause of death to be “homicide” and the manner
of death to be “Cardiopulmonary arrest during physical restraint, with blunt
impact of the head and compression of chest, while in agitated state.”
One week after the autopsy report was completed, DOC held a
regularly-scheduled Executive Staff meeting. The minutes of that meeting,
dated February 9, 2010, and compiled by then-Commissioner Clarke’s
executive assistant, reflect the following notes concerning statements made
by then-Commissioner Clarke:
Back in May, a patient came to Bridgewater
State Hospital for an evaluation from the courts and
he had passed away – we received information from
the Medical Examiner that this patient’s death has
been determined to be a homicide. We take
exception to this – everything was appropriately and
professionally done. The Medical Examiner chose
the word homicide – the term homicide - means
death at the hands of another. General Counsel
White and Commissioner Clarke will be reaching
out to BSH staff and all involved – this will hit the
media at some point, not sure when. Deputy
Commissioner Duval will also reach out to the
unions as General Counsel White is meeting with
staff today at 3:00 pm. Deputy Commissioner
Madden asked if anyone from MHM was going to be
present – she will find out.
General Counsel Nancy White confirmed that she and Deputy
Commissioner Ron Duval did address staff and union members pursuant to
Clarke’s directive.
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DRAFT, 03.01.14

When asked to explain his comments in a telephone interview, former
Commissioner Clarke recalled that he was surprised at the OCME’s finding
that Messier’s death was a homicide. He felt strongly that the finding
implied criminal culpability where there was none and wanted to reassure
staff that the Department was aware of the findings and would publicly
express support for the officers involved.
Commissioner Clarke resigned from the DOC on November 13, 2010.
B.

The Internal Affairs Unit (“IAU”) Investigation &
Subsequent Executive Review
1.

The Structure of the Internal Affairs Unit
(i) Prior to June 2010

Prior to September 2011, the Internal Affairs Unit was part of a larger
investigative unit within the DOC called the Office of Investigative Services.
Under the prior practice, the Chief of Internal Affairs reported directly and
submitted completed investigations to the Deputy Commissioner of the
Prison Division.
It was the responsibility of the Deputy Commissioner of the Prison
Division to review completed investigations and, if necessary, make an
independent determination as to whether any DOC policies were violated
and to refer the matter to the BSH Superintendent for appropriate discipline
if any policy violations were found.
At that time, the Assistant Deputy Commissioner in charge of
Administrative Services had the authority to review completed IA
investigations, but that was not a formal responsibility of the role. Karen
Hetherson assumed the role of Assistant Deputy Commissioner in charge
of Administrative Services on February 15, 2009.7 .
(ii)

Post-June 2010






























































7

Hetherson had been DOC’s Human Resources Director since November 2, 2002, and
that remains part of her responsibility today.
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DRAFT, 03.01.14

Deputy Commissioner Ron Duval who, at the time, was in charge of
Administrative Services, retired on May 28, 2010. Karen Hetherson was
promoted to Acting Deputy Commissioner in Charge of Administrative
Services.
On June 10, 2010, as Acting Deputy Commissioner of Administrative
Services, Hetherson undertook the responsibility of reviewing all IA reports,
a responsibility that had previously been that of the Deputy Commissioner
in Charge of the Prison Division.
Karen Hetherson remained Acting Deputy Commissioner for
Administrative Services until she was replaced by Don Gianciappo on
December 5, 2010.8 But, when she was no longer Acting Deputy
Commissioner and returned to her sole capacity as Assistant Deputy
Commissioner, Hetherson remained responsible for reviewing IAU
investigations. She was relieved of that responsibility on November 20,
2011, when Commissioner Spencer began to implement a series of
changes to IAU supervision, policy and practice.
2.

The IAU Investigation

The IAU investigation did not commence until early 2011, after the
Plymouth County District Attorney’s Office declined to present the matter to
a grand jury. It was concluded on May 25, 2011. The investigation
consisted of a review of staff reports and records, CPAC interviews with the
officers and medical staff and a review of the video surveillance of the
interaction between Messier and DOC officers in the ITU. The report,
which catalogues the information on which it relies, does not list any IAUconducted interviews with the DOC officers involved. Accordingly, it does
not appear that any such interviews occurred.
The IAU report reflects that the Messier incident began with Messier’s
unprovoked assault on Officer Rego in an area of BSH known as the B
Building. The IAU investigation found that the use of force against Messier
in response to that assault was proper.
The IAU investigation also addressed the use of force against
Messier in the BSH Intensive Treatment Unit (“ITU”). It found that Officers





























































8

Gianciappo resigned on January 15, 2011.
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DRAFT, 03.01.14

Howard and Raposo violated the DOC’s Use of Force policy in the ITU
when they placed weight on Joshua Messier’s back as he resisted their
attempts to restrain him.
The IAU investigation makes no finding as to whether Acting
Lieutenant George Billadeau, who supervised the restraint team, violated
the DOC Use of Force Policy by failing to intervene.
3.

Executive Review of the IAU Investigation

On June 3, 2011, Hetherson submitted her findings following her
supervisory review of the IA investigation. Her finding reads as follows:
Based upon the circumstances surrounding
this investigation, no misconduct was found against
staff. However, it is recommended that responding
staff, specifically Officers Howard and Rapos[o]
attend retraining in the use of restraints.
Send copy of this investigation to
Superintendent Murphy for review and appropriate
action. Specifically, ensure that Officers Howard
and Rapos[o] attend refresher training in the use
and application of restraints.
Send copy of this investigation to Peter
Heffernan, Acting Director of Clinical Services for
review and appropriate as it rel[ates] to Dr.
O[lobodum]9 [f]ailing to submit an incident report as
well as the recommendations made by Kenneth
Nelson.10
Hetherson’s finding does not distinguish the use of force in the B Building
from the use of force in the ITU.
Between June 10, 2010 and November 20, 2011, Hetherson
reviewed 209 IAU investigations. When asked how many times she had
found cause to disagree with the results of an investigation, Hetherson said
she did not think there was such an instance. In addition, the Messier





























































9

The IAU report reflects that Dr. Olobodum (whose name is spelled inconsistently
throughout the report) responded to the ITU following Messier’s restraint.
10

Kenneth Nelson was the Director of Quality Improvement at BSH.
17





DRAFT, 03.01.14

investigation represents the only instance in which she prefaces her
findings with the words, “Based on the circumstances surrounding this
investigation.” She did not elaborate as to the meaning of that phrase.
Assistant Deputy Commissioner Hetherson was questioned
extensively concerning the basis of her findings. She stated that she
reviewed the completed investigation documents and watched the ITU
surveillance video. She focused on whether there was evidence that the
officers’ conduct was intentional. She believed that the officers had not
received training11 on the use of restraints and that was the basis of her
finding.
When asked specifically how she viewed the conduct of Correction
Officers Howard and Raposo in light of the language of the Use of Force
policy prohibiting the placing of weight on the back someone being
restrained, Assistant Deputy Commissioner Hetherson responded that the
incident happened very quickly and reiterated her belief that officers did not
mean to cause harm.
When asked specifically if she had watched the video with anyone
from SOD or the DOC’s Training Division; or if she had consulted with
anyone from those Divisions before she made her finding, she responded
that she had not.
When asked if she had considered whether any unintentional or
negligent conduct constituted a violation of the Use of Force policy, she
responded that she could not recall specifically, but did not believe she
had. Hetherson was asked specifically whether in her review of the IAU
report she noted the absence of discussion or findings relative to Acting
Lieutenant Billadeau’s supervision and considered sending the
investigation back for a determination. She responded that she did not.
To better understand the basis for her decision-making, Assistant
Deputy Commissioner Hetherson was asked:
1. Whether anyone ordered her to find as she did;





























































11

It is not clear why Hetherson believed this, as she neither spoke to the officers
involved nor reviewed DOC records regarding their training.
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DRAFT, 03.01.14

2. Whether anyone suggested that she make certain conclusions or
findings; and
3. Whether she spoke with anyone before making her decision.
She responded “No” to each question and said, unequivocally, that she
would not have let anyone influence her decision. With regard to question
3, she added that she “did not recall talking to anyone except her Executive
Assistant, when [they] were going over the reports.”
Assistant Deputy Commissioner Hetherson sent her decision to BSH
Superintendent Murphy for follow-up. The decision included an order for
retraining. When questioned, she indicated that she considered that order
to be a remedial rather than disciplinary measure.
Upon learning that Hetherson had overruled the findings in the IAU
report, BSH Superintendent Robert Murphy was surprised. When
interviewed, he relayed that he sought Hetherson out and asked her if she
was “sure” about her decision regarding the IAU investigation.12 When
asked whether anyone had ever spoken with her about her decision to
express disagreement with it, Hetherson said she “did not recall” having a
conversation of that nature.
C.

Submission of the Use of Force Package
1.

DOC Policy Regarding the Use of Force

Pursuant to DOC policy, whenever a planned or spontaneous use of
force occurs, a package of forms, officer reports, video and medical records
(if any) is submitted up through the chain of command to the Special
Operations Division (SOD). SOD reviews the package and determines
whether the use of force was consonant with DOC Use of Force Policy. A
Use of Force Package can be accepted, rejected or sent back for
correction.






























































12

Murphy recalls that Peter Pepe — who, at the time, was Acting Assistant
Commissioner for the Southern Sector — was present for that conversation. Pepe
recalls that Murphy spoke to Hetherson alone, but he subsequently was made aware of
topic of their conversation.
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DOC policy required that reports to be included in the Use of Force
package must be written by the end the officer’s shift.
2.

Delay in Submission of the Use of Force Packet

In this case, all of the officers involved in the B Building use of force
and the ITU use of force were working the 3pm to 11pm shift. They
submitted reports concerning the use of force against Messier in the late
evening of May 4, 2009 or in the early morning hours of May 5, 2009.13
Although the key portions of the Use of Force package, i.e., the
officer reports, were drafted immediately following the incident, the package
was not submitted to SOD until December 12, 2012 (approximately 3 years
and 6 months after the incident).
As described below, this delay was authorized by DOC upon in
response to multiple requests by BSH leadership, though the basis for
those requests was moot by early 2011, when the criminal investigation
had concluded.
On May 20, 2009, former BSH Superintendent Karen Bergeron
requested, in writing, an indefinite extension on submitting the package to
SOD, citing the following reasons: “This Use of Force incident is currently
under review by the State Police and the Plymouth County DA’s Office due
to the death of a patient following a Code 99 at the conclusion of the UOF.
The timetable for this investigation and any subsequent investigation by the
Office of Investigative Services is not known at this time.”
Superintendent Bergeron’s request for an indefinite extension was denied
by Deputy Commissioner Ron Duval. He did authorize a 6-month
extension on May 26, 2004.
Thereafter, written requests for indefinite extensions – all citing the
same reasons as the first - were made on November 18, 2009, February
23, 2009, May 24, 2010 and August 30, 2010. Three of these requests
were made by then-BSH Superintendent Karen Bergeron. One request






























































13

These reports of several correction officers involved were edited at some time
following that point but prior to their submission to the SOD.
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DRAFT, 03.01.14

was made by Acting BSH Superintendent Lisa Mitchell.14 The first request
was granted, but the extension was limited to 6 months. The second, third
and fourth requests were granted, but the extension was limited to 90 days.
The first four requests were approved by Deputy Commissioner Ron Duval.
The last request for an indefinite extension was submitted by BSH
Deputy Superintendent Pat DiPalo. When interviewed, DiPalo indicated
that he had signed Superintendent Murphy’s name on the form and
indicated he had signed on Murphy’s behalf by including an “@” sign after
Murphy’s name. DiPalo signed in his capacity as Acting Superintendent, a
position he assumed whenever Murphy was out of the office for any period
of time. That DiPalo signed the request is supported by the cover memo
accompanying it, reflecting that it was sent by “Patrick DiPalo, Acting
Superintendent,” to “James Bender, Deputy Commissioner.” The request
was authorized without time restriction by Deputy Commissioner James
Bender.15
On February 3, 2010, The Office of the Medical Examiner (OCME)
determined that the cause of death was “homicide.”16 Per a statement
given by the Plymouth County District Attorney’s Office, on May 4, 2010,
Assistant District Attorney Thomas Flanagan and investigators from the
State Police met with Medical Examiner Mindy Hull. Per that statement,
during the meeting, Dr. Hull “advised [Assistant District Attorney] Flanagan
that she did not find evidence of positional asphyxia during the autopsy.”
At some point following that discussion, the Plymouth County District
Attorney’s Office (per its statement) “determined that there was insufficient
evidence to proceed on criminal charges against the correction[] officers





























































14

Lisa Mitchell was a Deputy Superintendent at BSH. She was only named Acting
Superintendent when the Superintendent was out of the office, e.g., on vacation or out
sick.
15

The request includes language that it was sent to “the DOS Legal Office for a
determination” of whether the “Use of Force Package needs to be completed or not.”
When asked about this language, DiPalo indicated the phrase “DOS Legal Office” —
which does not exist — was a transcription error, and that he intended to reference the
SOD office.
16

The OCME distinguishes homicide (death at the hands of another) from suicide
(death by one’s own hand) and accidental death (misadventure). The finding does not
imply culpability, as that determination is left to the District Attorney.
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DRAFT, 03.01.14

involved in the restraint of Joshua Messier.” It is not clear when that
determination was made, nor is it clear when that determination was
relayed to DOC. Nonetheless, it is a reasonable supposition that the
determination was made at some point prior to March 23, 2011, when State
Police investigators shared their investigatory reports with the IAU.
By that time, at the latest, the basis for the requested extensions for
the submission of the Use of Force package had been eliminated.
Nevertheless, according to Deputy Commissioner Peter Pepe, the failure to
submit the Use of Force package following the conclusion of all
investigations of Joshua Messier’s death by outside law enforcement
agencies went unnoticed until late November of 2012. At that time Deputy
Commissioner Peter Pepe asked SOD Special Operations Division (“SOD”)
Director Steve Ayala for the results of his analysis of the use of force.
Ayala told him that SOD had not received the package. Ayala then
contacted BSH Superintendent Robert Murphy and instructed him to submit
it immediately. Deputy Commissioner Pepe instructed Ayala to prioritize
the analysis.
3.

Rejection of the Use of Force Package

Pursuant to Use of Force regulation 103 CMR 505 13(5), “[the]
Director of the Special Operations Division shall review the reports and
may request additional information or may submit an intake to the Office of
Investigative Services for official investigation.”
The package was received by SOD on December 12, 2012 and
rejected by Director Steven Ayala on January 11, 2013 for not being in
compliance with the Department’s Use of Force Policy, 103 CMR 505.
Specifically, Ayala found:
• The package was not signed by then Acting Lieutenant and now
current Lieutenant George Billadeau, who prepared the it and who
supervised the application of restraints the night Messier died;
• The package was not signed off by the institutional reviewing
authority, namely BSH Superintendent Robert Murphy; and
• Based on his Division’s review of the video surveillance footage of the
incident in the ICU, “staff members violated the Department’s Use of
Force policy” by:
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DRAFT, 03.01.14

o placing weight on Messier’s back as he resisted being
restrained; and
o failing to maintain proper observation of Messier’s ability to
breathe once he was restrained.
DOC regulations, specifically 103 CMR 505 13(5), are silent as to what, if
any, further steps should be taken by the SOD if a Use of Force package
is rejected for substantive reasons and an IAU investigation on the same
issue has already been completed and reviewed. However, upon receipt
of a rejected Use of Force package and pursuant to 103 DOC 230.05, the
BSH Superintendent can take any appropriate action, including a request
for investigation, imposition of discipline up to a five-day suspension or a
request for discipline exceeding a five-day suspension.17
In this case, by the time Superintendent Murphy received the rejected
package from Director Ayala, Assistant Deputy Commissioner Karen
Hetherson’s executive review of the IAU investigation had concluded and
her findings had been made. Officers Raposo and Howard had already
received the re-training that was ordered. As indicated above,
Superintendent Murphy has stated that he challenged Hetherson’s
decision directly at or near the time it was made and had expressed his
concerns to Peter Pepe, who, at that time, was next in the chain of
command.






























































17

As noted above, any disciplinary sanction exceeding five days requires notice and a
hearing, e.g., G.L. c. 31, § 41.
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III.

FINDINGS & CONCLUSIONS
A.

DOC Response to OCME findings
1. DOC has offered an explanation for its delay of an IAU
investigation following Messier’s death, i.e., the pendency of
a criminal investigation.
2. Given that explanation, DOC leadership should not have
commented on the criminal investigation (except as asked to
participate in that investigation), and it particularly should not
have expressed a view as to the appropriateness of the
conduct of the correction officers involved.
3. Accordingly, the comments of Commissioner Clarke on
February 9, 2010 — regardless of the sincerity of the belief
that motivated them, which I have no reason to discount —
were not appropriate.

B.

IAU Investigation
1. The IAU investigation, concluded on May 25, 2011,
determined that Officers Howard and Raposo failed to
comply with DOC policy when they applied pressure to
Messier’s back while he was handcuffed and in the process
of being put in four-point restraints.
2. The Executive Review of that investigation — conducted by
Assistant Deputy Commissioner Karen Hetherson — was
conclusory. Without written explanation, Hetherson
concluded that “[b]ased on the circumstances surrounding
this investigation, no misconduct was found against staff.”
When interviewed and asked to elaborate on the basis of her
finding, Hetherson relayed that, in her view, none of the
officers intended to harm Messier. Negligent conduct can
also result in a policy violation. As Hetherson knew or should
have known, her review should have first determined
whether the officers involved complied with DOC policy,
without regard to whether they did so intentionally or
unintentionally. Upon finding that the conduct was not
intentional, her analysis should have turned to whether it
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DRAFT, 03.01.14

was unintentional. The IAU investigation made a conclusion
on that issue as to Officers Howard and Raposo, and at no
time has Hetherson offered a basis to depart from it.
3. BSH Superintendent Murphy brought his concerns regarding
Assistant Deputy Commissioner Karen Hetherson’s
Executive Review to Hetherson’s attention. Hetherson did
not take any material steps in response.
4. The IAU investigation was incomplete in at least one
material respect, i.e., its failure to address the actions (or
inactions) of Acting Lieutenant Billadeau who supervised the
restraint of Messier and did not intervene. Hetherson should
have addressed that deficiency, which she could have
accomplished in a number of ways (e.g., by determining
herself whether Acting Lieutenant Billadeau violated DOC
policy or by returning the investigation to the IAU with an
instruction that the IAU should determine whether Acting
Lieutenant Billadeau’s supervision complied with DOC
policy).
C.

Use of Force Package
1. BSH leadership requested that it be permitted to delay the
submission of a Use of Force package on five occasions.
On each occasion, it cited the pendency of a criminal
investigation. Even were I to accept that justification as
sufficient to delay the submission of the Use of Force
package, the justification ceased to exist in early 2011.
2. Nevertheless, the Use of Force package was languishing,
unsubmitted, until late November 2012 when Deputy
Commissioner Pepe discovered that it had not been
submitted. He promptly instructed BSH Superintendent
Murphy to submit the package immediately and instructed
SOD Director Ayala to prioritize its review. The Use of Force
package was submitted on December 7, 2012.
3. Once submitted, the Use of Force package was promptly
rejected by the SOD. Like the IAU investigation, the SOD’s
review of the Use of Force packet noted, among other
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DRAFT, 03.01.14

things, the violation of DOC policy prohibiting the application
of force to the back of a restrained patient.
4. Commissioner Spencer was made aware of the rejection of
the Use of Force packet. He did not take any steps to
reconcile that rejection with the Executive Review of the IAU
report, which had concluded that no misconduct had
occurred.
5. The above findings warranted the following steps:
a. Commissioner Spencer has received a formal
reprimand for allowing the Use of Force package to
languish, unsubmitted until December 7, 2012; and for
failing to take any material action upon receiving notice
that the Use of Force package had been rejected by
the SOD.
b. Bridgewater Superintendent Robert Murphy has
received a formal reprimand for allowing the Use of
Force package to languish, unsubmitted, until
December 7, 2012.
D.

Other Issues
1. My review has given rise to concerns regarding whether
DOC complied with its own reporting and investigatory
requirements following Messier’s death, i.e., those reporting
and investigatory requirements unrelated to employee
discipline. By way of example, DOC typically will conduct a
mortality review following an unexpected death at BSH. It
appears that no such review has been performed.

E.

Next Steps
1. Remaining Disciplinary Process.
a. The two DOC inquiries that properly focused on
whether Correction Officers Howard and Raposo
complied with the DOC prohibition on applying
pressure to the back of a restrained inmate concluded
that they did not. The sole conclusion otherwise, i.e.,

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DRAFT, 03.01.14

the Executive Review, was conclusory and, based on
later-proffered explanation, incorrect.
b. The Commissioner should determine the appropriate
punishment for Correction Officers Howard and
Raposo and comply with statutory and regulatory
processes associated with that punishment. Each
officer should be placed on leave until the disciplinary
process has concluded.
c. Neither the IAU report nor the Executive Review
thereof nor the SOD’s Use of Force addressed the
actions (or inactions) of Acting Lieutenant Billadeau on
the night of May 4, 2009.
d. Commissioner Spencer should examine those actions
or inactions, determine an appropriate punishment (or,
alternatively, whether he requires further information
from the IA), and begin the disciplinary process.
Acting Lieutenant Billadeau should be placed on leave
until that process is complete.
2. Prompt Reporting
a. Commissioner Spencer will undertake a full accounting
as to whether DOC complied with its own reporting and
investigatory requirements following Messier’s death.
If any such requirements were not followed, an
explanation should be provided, together with concrete
steps to ensure that no such omissions are repeated (if
appropriate).

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APPENDIX A
The following documents were reviewed:
• Department of Correction policies 650, 651 and 505 regarding the
use of force and use of restraints;
• Bridgewater State Hospital Use of Force Package, dated
December 12, 2012;
• DOC Internal Affairs investigation numbered DOC-BSH-09-67 and
dated May 25, 2011;
• Report of the Office of the Chief Medical Examiner, dated
February 3, 2010;
• The Executive Review and Summary of Internal Affairs
Investigation numbered DOC-BSH-09-67 and dated June 6,2011;
• DOC organizational charts for 2009 and 2011;
• Plymouth County CPAC investigation, dated September 1, 2010;
• Minutes of a DOC Labor/Management meeting dated February 11,
2010;
• Minutes of DOC Executive Staff Meeting, dated February 9, 2010;
• Autopsy and findings of the Office of the Chief Medical Examiner
re: the death of Joshua Messier dated February 3, 2010.
• Undated press statement of District Attorney Timothy Cruz re:
OCME findings;
• Executive reviews and findings of IAU investigations from
November 2010 to November 2011.

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