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MADRID v. RIMMER

January 15, 2004.

ALEJANDRO MADRID, et al., Plaintiffs
v.
RICHARD RIMMER et al., Defendants



The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge

SPECIAL MASTER'S DRAFT REPORT RE DEPARTMENT OF CORRECTIONS "POST POWERS" INVESTIGATIONS AND EMPLOYEE DISCIPLINE
I.
INTRODUCTION
Pelican Bay State Prison ("PBSP") Sergeant E.M. Powers ("Powers") and Correctional Officer J. R. Garcia ("Garcia") were charged in the United States District Court for the Northern District of California (case CR-00-0105-MJJ) with a conspiracy to violate civil rights (18 U.S.C. § 241) and a substantive count of violations of civil rights (18 U.S.C. § 242). After a trial by jury, Powers and Garcia were convicted and sentenced to prison. The cases are presently on appeal.

While the Powers/Garcia criminal case was pending, officials from the California Department of Corrections ("CDC"), including attorneys from the CDC Employment Law Unit ("ELU"), prepared a detailed written plan entitled "Post Powers Investigative Plan and Disciplinary Review Process" ("Post Powers Plan") that called for investigations and discipline of those employees who had violated the PBSP use of force policy because of their involvement with the misconduct of Powers and/or Garcia. The Post Powers Plan was submitted to the Special Master. After several meetings and numerous revisions, it was approved by the Special Master.

  In June 2002, after the jury verdict in the Powers/Garcia criminal trial, various CDC officials, including the Department's highest ranking investigators and an ELU attorney met with Assistant United States Attorney Melinda Haag, one of the U.S. Attorneys who had prosecuted Powers and Garcia. Ms. Haag summarized the evidence presented at the criminal trial. The CDC officials at the meeting concluded that seven incidents of potential staff misconduct warranted further administrative review. Based on this Page 2 presentation, after a follow-up meeting on June 8, 2002, the decision was reached to pursue three of the seven cases further.

  The three cases will be referenced by the name of the inmate victim of correctional officer assaults. The Perez case involved Sergeant Powers assaulting inmate Perez in the prison chapel; the Black case involved Powers and other correctional officers assaulting inmate Black in a PBSP gymnasium; and the Chester case involved correctional staff planning and facilitating the stabbing of inmate Chester in a PBSP recreation yard. The underlying incidents, however, were not the focus of the CDC's investigation. Instead, and pursuant to the Post Powers Plan submitted to the Special Master, the CDC intended to investigate whether the subject Correctional Officers: Jones, Matlock, and Tuttle, had committed perjury during their testimony regarding the Perez, Black, and Chester incidents at the Powers/Garcia criminal trial.

  The Special Master was informed of the CDC's decision to pursue the three cases via a telephone conference with CDC officials in late June 2002. At that time, the cases were described as "solid." The Special Master was provided an update concerning the investigations at a "60-day" meeting in Sacramento in January 2003, and told that internal affairs investigations had commenced concerning the three cases. In late March 2003, however, the Special Master received a telephone call stating that the investigations had been completed and the decision made not to proceed with discipline.

  In his status report filed July 23, 2003, the Special Master informed the Court that the CDC had failed to comply with the use of force remedial plan and the Post Powers Plan. Rather than completing the investigations in six months, the investigations had not been assigned for four months. Instead of assigning a team of investigators, only one investigator was instructed to complete three complicated and serious investigations. No reports were prepared, no notes were retained, and only a fraction of the key witnesses on one of the three cases were interviewed. The remaining two cases were essentially ignored.

  The only case partially investigated, an incident involving Officer Jones directing Officer Schembri to look away when inmate Caldwell was to be stabbed, had been presented to Robert Gaultney ("Gaultney"), Assistant Chief Counsel of the ELU on March 20, 2003. Gaultney made the decision to refer the case to the San Francisco District Attorney. The investigator assigned to the case informed the California Correctional Peace Officers Association ("CCPOA") of the decision "to go criminal" on March 24, 2003. Shortly thereafter the investigator was ordered to appear at a meeting with the then Director of Corrections — Edward Alameida. On March 27, 2003, a week after Gaultney made the decision to go criminal, all three investigations were shut down by the Director of Corrections.

  The Special Master also reported that several statements in a "fact finding" letter prepared by the CDC's Central Office to support the decision to close the investigations were false. For example, concerning the incident where Officers Jones and Matlock are alleged to have covered up Sergeant Power's assault of inmate Perez, the letter stated: "Perez's credibility is questionable due to a history of mental illness." As verified by Court expert Dr. Jeffrey L. Metzner, Mr. Perez does not have a mental illness or a history of mental illness. Concerning the allegation that Officer Jones told Officer Schembri to look away when inmate Chester was to be stabbed, the letter stated: "Officer Manzano was in the control booth during the alleged conversation between Schembri and Jones and stated he did not hear the alleged conversation." Department of Corrections documents and the trial transcript, however, prove this statement to be false. Officer Manzano testified with immunity that he was in the control booth when Officer Jones spoke to Officer Schembri and he did hear a conversation about inmate Chester being in trouble, but heard nothing about Chester being stabbed. Finally, the Special Master informed the Court that the CDC had Page 3 missed the one year statute of limitations to file administrative charges against Officers Jones, Matlock, and Tuttle.

  Based on these initial findings, the Special Master recommended a series of hearings concerning the Post Powers/Garica investigations and the decision to shut down the three cases. At the Status Conference of July 28, 2003 the Court instructed the Special Master to proceed with those hearings and develop a full record and report.

  II.

 
THE PELICAN BAY STATE PRISON USE OF FORCE REMEDIAL PLAN
  The Court approved use of force remedial plans at PBSP mandates that certain actions take place during an investigation of misconduct involving false, incomplete, evasive, or lack of cooperation by staff during abuse of force investigations. All managers and supervisors involved with PBSP investigations and discipline have the responsibility to investigate incidents of abuse of force, including incidents where correctional officers cover-up, withhold, or act in concert with others to prohibit factual information from being reported as required by the Use of Force Policy. Managers also must document the use of force and document investigation findings. Specifically:
 
It shall be the responsibility of each supervisor and manager to review any employee misconduct related to the use of force and take appropriate action in compliance with this policy and procedure.
See, PBSP Use of Force Disciplinary Policy Section II.D (9/30/02)
. . . when an employee violates the below tenets of the Use of Force Policy, the adverse action process shall be initiated at a level above an official reprimand. 2.Any attempt to cover up or withhold any information relative to staff misconduct in any use of force.
  33.Any involvement in a coordinated effort with other staff to prohibit factual information from being reported as required in the Use of Force Policy.
 
See, Use of Force Disciplinary Procedure Section V.C. 2-3 (9/30/02)
At the conclusion of the investigation, the investigator shall provide a detailed report of the investigation on a CDC Form 989A and B, Internal Affairs Investigation Report. The CDC Form 989A and B shall be filled out completely and contain the facts and evidence discovered by the investigator.
See, Use of Force Investigation Policy and Procedure Section VIII.B.3 (9/20/00)
  The findings of each allegation shall be noted as to whether the inquiry supports or refutes the allegation(s). The investigator shall arrive at one of the following findings identified in Section VII, Subsection B, (5), (b), of this procedure. Page 4
 
See, Use of Force Investigation Policy and Procedure Section VIII.B.4 (9/20/00)
Neither party disputes the fact that the administrative investigations of Officers Jones, Matlock, and Tuttle involve the most serious form of false, incomplete, and evasive misconduct that can occur in relation to an abuse of force: perjury when testifying at a criminal trial in Federal Court. The evidence reviewed by the Special Master prior to the hearings indicated that the Director of Corrections and other high ranking officials in the CDC may have themselves violated the use of force remedial plan by (1) failing to ensure that the alleged misconduct of Jones, Matlock, and Tuttle was investigated, (2) failing to adequately investigate and discipline any such misconduct, and (3) failing to complete the Internal Affairs Investigation Report mandated by the remedial plan and the CDC's Department Operations Manual ("DOM"). The report below addresses these issues.
III.
THE SPECIAL MASTER'S HEARINGS AND DOCUMENT REQUESTS
  The Special Master conducted five days of hearings concerning the Post-Powers/Garcia administrative investigations. The dates of the hearings, witnesses, and references to the transcript are set forth in Appendix 1 attached to this report. The transcripts have been lodged with the Court, along with the exhibits placed in evidence at each hearing. The page numbers for the transcripts are sequential; therefore, citations to testimony from the hearings will reference the name of the witness, followed by "Tr." and the page of the transcript where that testimony is found.

  The exhibits placed into evidence at the hearings are set forth in Appendix 2. The Special Master will also refer to additional exhibits in this report. These exhibits are either documents provided by the Department of Corrections or reports from Court expert Dr. Patrick Maher. The additional exhibits are listed in Appendix 3. Finally, the Special Master also reviewed and considered a number of documents provided by the Department of Corrections which are not referenced in this report. Those documents are set forth in Appendix 4. Appendix 5 is a glossary of Department of Corrections acronyms used in the report.

  The exhibits listed in Appendixes 2-3 have been filed with the Court concurrently with the filing of this report. Exhibit 29, an Office of the Inspector General ("OIG") report concerning problems with the Office of Investigative Services ("OIS"), will be filed under seal.

  The Special Master held numerous discussions with counsel during the hearing process. He allowed the parties to examine and cross-examine witnesses. The Special Master also allowed the parties the opportunity to call their own witnesses during the hearings. For example, defendants presented the testimony of Michael Miller and David Tristan ("Tristan"). In addition, the parties were provided the opportunity to submit documentary evidence in addition to documents placed in evidence by the Special Master. For example, defendants submitted into evidence exhibits 25 and 32. The parties were also offered the opportunity to argue at the final hearing; however, both plaintiffs and defendants declined the offer.

  The findings below are based on all of this evidence.

  IV. Page 5

  FINDINGS

 A. Introduction.

  During the course of the Special Master's hearings evidence came to light that:

  1. The Post Powers internal investigations were inadequately staffed, began four months late, and were shut down by Director Edward Alameida ("Alameida") before the investigations were completed.

  2. The untimely start of the investigations, the processing of the investigations, and Alameida's decision to shut down the investigations violated the Use of Force Discipline Remedial Plan, the Department Operational Manual ("DOM") for the Office of Investigative Services ("OIS"), and the Post Powers Plan.

  3. In conjunction with closing three active investigations, a false and misleading letter was sent to the Special Master. The investigations were never properly closed-out, and no internal affairs reports were prepared.

  4. The Post Powers investigations are indicative of serious systemic problems in the OIS and the ELU, problems identified two years ago by the Office of the Inspector General ("OIG) and never corrected by the CDC.

  5. The criminal and administrative investigations concerning misconduct by Powers, Garcia, and former Correctional Officer David Lewis ("Lewis") and the Post Powers investigations have been disrupted over the last ten years by the California Correctional Peace Officers Association ("CCPOA").

  Much of this evidence is not in dispute. There are disputes, however, with respect to what occurred during the period of March 20-27, 2003, when the decision to shut down the Post Powers cases was made.

 B. History of the Criminal Prosecutions Against Powers, Garcia and Correctional Officer David Lewis.

  1. The Shut-Down of the PBSP Internal Affairs Investigation.

  The initial Department of Corrections investigations into possible administrative and criminal misconduct by Powers and Garcia began in the mid-1990s. At first, the investigations were conducted by a team of PBSP internal affairs investigators reporting to Captain Dan Smith. The team involved Joe Reynoso ("Reynoso"), Craig Franklin, Chet Miller and Lt. Roussopoulous. (Reynoso Tr. 484-485) Almost immediately, the investigation team encountered resistence from local representatives of the California Correctional Peace Officers Association ("CCPOA"). Charges and counter charges were filed, and eventually litigation. The Special Master was working on this case as a Court appointed expert at the time and discussed this issue with Warden Steve Cambra on several occasions from 1995 through 1997. Given the level of CCPOA resistence, Warden Cambra became concerned about the ability of local investigators to complete the investigations. He eventually made the decision to close-down the local case and refer the investigation of Powers and Garcia to the CDC's Law Enforcement Investigation Unit ("LEIU"). LEIU investigates criminal misconduct on the part of staff and inmates. See also, Reynoso Tr. 485.

  2. The LEIU Investigation and the State Court Criminal Trial of Garcia.

  George Ortiz of LEIU assumed responsibility for the investigation. Charges against Officer Garcia were sustained and state court criminal charges were filed concerning a conspiracy to have inmates assaulted, bringing alcohol into a state facility, and assault with a deadly weapon likely to produce great bodily injury. (Reynoso Tr. 486-487). The CDC provided investigative and legal assistance to the District Attorney of Del Norte County in the Garcia criminal prosecution. (Reynoso Tr. 487; Sheldon Tr. 600; Gaultney Tr. 831) The attorneys selected by the CCPOA to represent Garcia in the criminal case were Page 6 Robert Noel and Marjorie Knoller. Garcia was found guilty of the conspiracy charge, the alcohol charge and the assault charge. Garcia's state court conviction was later overturned (Reynoso Tr. 488-489).

  3. The Termination of Correctional Officer David Lewis.

  ELU staff attorney Barbara Sheldon ("Sheldon") worked with the district attorney in the Garcia state criminal prosecution. (Sheldon Tr. 600). Sheldon also handled the administrative case against Lewis (Sheldon Tr. 600). Lewis' employment with the California Department of Corrections ("CDC") was terminated on October 4, 1996 because of misconduct that included calling inmates "primates," "monkeys," "toads," and "niggers," and for demeaning actions toward sex offenders. The termination was upheld by the California State Personnel Board which found, among other things, that Lewis' misconduct included inexcusable neglect of duty, discourteous treatment, and a failure of good behavior which caused discredit to the Department of Correction.

  4. The Obstruction of Justice Investigation of CCPOA Representatives Alexander and Newton, and the Sustained Findings of the Knowles/Palmer Investigation.

  Ms. Shelton testified at the hearing of September 25, 2003 about an obstruction of justice investigation that was initiated because of alleged misconduct by CCPOA representatives during the criminal investigation of Garcia. The investigation subjects were PBSP CCPOA representatives Charles "Chuck" L. Alexander, Jr. ("Alexander") and Richard T. Newton ("Newton"), and Correctional Officers Robert Rice, Jean Rupert, Roy Alvarado, and Deanna Frietag. The formal internal affairs investigation was authorized by then Regional Administrator Michael Pickett. It was conducted by M.E. Knowles, Chief Deputy Warden of High Desert State Prison, and P.D. Palmer, Facility Captain, Folsom State Prison. Their report, referred to as the "Knowles/Palmer Report," was completed September 22, 1997 and is attached as Exhibit 26.

  The report sustained numerous charges against CCPOA representative Alexander, including inappropriate and questionable activity under the guise of Union business, preparing State Personnel Board requests for adverse action with malice, and misusing their authority as CCPOA representatives to access confidential information. CCPOA representative Newton had the same sustained charges, plus a sustained charge of having knowledge of Garcia's illegal and inappropriate behavior and failing to properly report that behavior. Newton possessed this information during the on-going criminal prosecution of Garcia and while Newton assisted in representing Garcia during his SPB hearing. Alexander and Newton received formal notice of the investigation findings of sustained charges via a memorandum for Captain Barry O'Neill dated October 31, 1997. (Exhibits 27 and 51) Alexander and Newton sued the CDC over the Knowles/Palmer Report. (Exhibit 28) The litigation subsequently settled. (Sheldon Tr. 634-635).

  5. The Federal Criminal Prosecution of Powers and Garcia.

  Investigator Reynoso was assigned to assist with the FBI investigation of criminal misconduct by Powers and Garcia in 1998. (Reynoso Tr. 489-490) Sheldon was the department liaison for the grand jury in the case. (Sheldon Tr. 601).

  CCPOA resistence to the Powers/Garcia criminal investigation continued. At one point during the FBI investigation, the union put out a memo notifying staff that internal affairs was going to be at PBSP and informing correctional officers they did not have to talk to them, in essence sending a message not to cooperate with internal affairs no matter what position they were in. (Reynoso Tr. 495). In order to interview correctional staff, subpoenas had to be issued to force their testimony before the grand jury. (Reynoso Tr. 496). Because of the code of silence one officer did not come forward with any information until he left the CDC's employment for fear of his safety. (Reynoso Tr. 497; Haag Tr. 794-795). The Special Master became involved with this problem shortly before the federal criminal trial began, when correctional officers who were willing to testify for the prosecution at trial told the FBI they had been informed by CCPOA representatives that if their testimony at trial differed from their reports at the time of the incident, the CCPOA would request the CDC to initiate discipline charges against them. Furthermore, CCPOA representatives would be attend the Powers/Garcia criminal trial to monitor correctional officer testimony. The Page 7 Special Master discussed this problem in two meetings, one at the prison and one in Sacramento with CDC officials from the Central Office.

  6. The Federal Criminal Prosecution of Lewis.

  While investigating the allegations against Powers and Garcia, the FBI came across evidence which revealed that in 1994 Lewis (the same officer who was subsequently terminated for calling inmates "primates," "monkeys," "toads," and "niggers," and for demeaning actions toward sex offenders) intentionally shot inmate Harry Long while on duty in a Pelican Bay gun tower. (Reynoso Tr. 490-491) Apparently, Lewis erroneously believed that inmate Long was a child molester.

  As a result of this investigation federal criminal charges were filed against Lewis. The CCPOA selected Noel and Knoller to represent Lewis. He was convicted by a jury in the United States District Court for the Northern District of California for deprivation of rights under color of law in violation of 18 U.S.C. § 242 and use of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924. Lewis' conviction was overturned by the Ninth Circuit in an unreported decision filed October 26, 2001. Renewed charges against Lewis are pending in the U.S. District Court for the Northern District of California. The case is scheduled for re-trial in 2004.

 C. Defendants' Post Powers/Garcia Investigation and Discipline Plan.

  While the Powers/Garcia federal criminal trial was pending, the Special Master was informed that the CDC had no established program to discipline correctional staff who may have been involved in violations of the use of force remedial plan, which, while not rising to the level of criminal misconduct, were serious enough to require administrative discipline. The CDC had neither a sufficient plan, nor precedent to conduct this form of administrative review. For example, no correctional officer was investigated after the Garcia state court trial, even though some officers did not testify truthfully in the opinion of the CDC's attorney. (Sheldon Tr. 612).

  Therefore, the Special Master requested in October 2001 that CDC officials develop a Post Powers administrative investigation and discipline plan. Sheldon was primarily responsible for preparing the plan, in conjunction with John Sugiyama, then Deputy Director, Legal Affairs Division. (Sheldon Tr. 602) The plan was developed by ELU in conjunction with the OIS. Sheldon was supervised by Gaultney, who, at the time, was the Assistant Chief Counsel of the ELU. Several meetings were held with CDC officials during the development of the plan, numerous criticisms were made of early drafts, and extensive changes were made to the final version of the plan. (See e.g. the letters and reports from Court expert Dr. Patrick Maher in Exhibits 22-25; see also Sheldon Tr. 604-607). Sheldon took her project very seriously. The final version of the Plan is attached as Exhibit 2. No one disputes the fact that the CDC made a commitment to the Special Master to implement the plan as necessary.

  Some of the more important provisions of the plan required the following: Page 8

 
At all times during the process, Assistant Chief Counsel of the Employment Litigation Unit Robert Gaultney and Supervising Senior Staff Counsels Debra Ashbrook, Vickie Brewer and Barbara Sheldon will be available to monitor the process and be available for consultation.
The investigators will follow Department authorized investigation protocols in completing the investigations.
The expectation is that the investigations will all be completed within 6 months of learning the names of employees who may be subject to discipline. Staff Counsel will be available for consultation throughout the investigations.
When the investigations are completed they will be sent to the Warden of the institution or the Regional Administrator of the Parole Region where the employee is assigned. After consultation with the Assistant Chief Counsel and the Supervisors of Legal Affairs, the hiring authority, whether a Warden or a Regional Administrator, will make a recommendation regarding discipline.
  Numerous Central Office officials were aware of the plan, including Gaultney, Dennis Beaty ("Beaty"), Brian Parry ("Parry"), Vicki Brewer, and Thomas Moore ("Moore"). (Sheldon Tr. 618; Gaultney Tr. 821-822). Director of Corrections Alameida and Chief Deputy Tristan, however, testified they had not seen the plan at the time of the critical meeting of March 27, 2003. (Alameida Tr. 695; Tristan Tr. 873) Likewise, as explained below, the investigator and attorney assigned to the Post Powers administrative cases were kept in the dark about the CDC plan.

 D. The Meeting Between Melinda Haag and CDC Officials.

  On June 4, 2002, after Powers and Garcia were found guilty, Assistant United States Attorney Melinda Haag met with Parry, who at time was directing the operations of both LEIU and OIS, Joe Barbara ("Barbara"), the ELU attorney assigned to oversee the Post-Powers investigations, Moore, and Reynoso. (Barbara Tr. 17; Reynoso Tr. 498-501; Parry Tr. 422-423; Haag Tr. 774).

  Ms. Haag was told the CDC was evaluating whether it should conduct administrative investigations to determine whether department employees had been untruthful in their testimony in the Powers/Garcia criminal trial. Ms. Haag was asked if she would meet with various people from the CDC and summarized for them the trial testimony. It was her understanding the Department was particularly interested in circumstances where correctional officers testified contrary to the evidence presented by the government. (Haag Tr. 774-776) Ms. Haag provided an oral summary of the evidence presented at trial at the meeting of June 4th. Thereafter, a written summary of seven potential cases was prepared by Parry for Barbara's signature (Barbara Tr. 20; Parry Tr. 422; see Exhibit 3).

  A second meeting was held concerning the seven cases a few days later. This meeting was limited to CDC staff, and included Parry, Barbara, Moore, Reynoso, and Gaultney. (Reynoso 502-503). Each case was discussed and analyzed. Moore suggested, given the length of time that had expired since the underlying use of force incident, that the CDC should just let the cases go. Gaultney, however, disagreed. Gaultney instructed the other participants to determine what cases should be investigated. (Reynoso Tr. Page 9 504; Parry Tr. 424). The decision was made to proceed with three cases. (Barbara Tr. 25, Parry Tr. 424-428; Gaultney Tr. 821-823) As explained by Parry at the hearing of August 26, 2003, he felt that three cases were strong enough to pursue. He testified that the participants at the meeting were not "forced" by the U.S. Attorney's Office or the Special Master to take the three cases. The CDC's investigators and attorneys made the decision to pursue the cases because there was alleged misconduct and they were presented in such a way that they were going to have to look at them. (Parry Tr. 471; Haag 789).

  The CDC thereafter requested transcripts and investigation reports from the U.S. Attorney to commence its review of the three selected cases. These documents were provided to the CDC in a timely manner. (Exhibit 5).

 E. The Substance of the Administrative Investigations of Correctional Officers Jones, Matlock, and Tuttle.

  The underlying facts of the three "Post-Powers" investigations and the suspected perjurious testimony of Correctional Officer William Jones ("Jones"), Charles Matlock ("Matlock"), and Owen Tuttle ("Tuttle") are set forth below: Perez Incident

  The evidence in the case involving inmate Perez was primarily presented at trial by former C.O. Jim Mather ("Mather"), and by reports and conclusions that could be drawn from those reports. Mather was an officer at the time of the incident in February 1991 and he was assigned to the yard that day. His supervisor was Powers. Mather testified as follows:

  Powers assigned Mather and Officer Bill Jones to search inmates as they came out of the education area. Mather did not know if there was a particular reason for the searches. Marco Perez was among the group of inmates to be searched. When it came Perez's turn to be searched, Perez was not cooperative. In their efforts to make Perez cooperate, they turned him to a wall. Perez spun off the wall and in doing that he ended-up punching or hitting Mather. In response to Mather being hit, a group of officers converged on Perez, including Jones and an officer named Matlock. The officers took Perez to the ground. Mather was also on the ground and he saw that Matlock was kicking Perez. Mather was aware of that because he was afraid he was going to be kicked and Mather told Matlock to stop. There was testimony in the trial that kicking is not appropriate under the circumstances of the Perez incident.

  Perez resisted initially, but the officers were able to control and subdue him. Eventually Mr. Perez was under control and on the ground. At that point, Powers, who was watching, instructed the officers to take Perez into a hallway that led to a chapel nearby. The officers picked Perez up and took him into the hallway. Powers followed. Handcuffs were placed on Perez. Once Perez was in the hallway, Powers ordered that the handcuffs be taken off. Powers said something to the effect of, "don't mess with my officers" and then Powers punched Perez. At that point, Perez was taken to the ground and strip searched. Nothing was found.

  In the aftermath, Powers told the officers to write reports. Mather wrote a report and included that Perez was taken into the hallway, he did not, however, include anything about punching in the hallway. Mather testified he did not include the punching because of the code of silence. Mather knew he shouldn't say that Powers hit Perez. Mather submitted his report to Powers. When he received a typed version of the report back, there was no reference at all to the hallway. The report simply said there was an incident; Perez hit Mather, the officers took him to the ground, subdued him, and transported him to medical — leaving out the hallway incident altogether.

  At trial the government introduced the reports prepared by each of the officers on duty. All of the Page 10 reports were written the same way; there was no reference to Perez being taken into the chapel hallway. The suspected perjurious testimony Ms. Haag brought to the attention of the CDC was as follows: When the defense called Jones as a witness, Jones said that Powers did not punch Perez. Matlock was also called by the defense, and he said the same thing. (Haag Tr. 776-780)

 Black Incident

  The testimony concerning the inmate Black incident came from Inmate Michael Black, two other inmates at the prison, a statement made by Powers to the FBI, and statements from Lt. Gary Wise. Black testified about previous confrontations he had previously had with Garcia and Powers, and with other officers on the Powers' crew. Black was on the yard when he approached by Officers Tuttle and Payne, who ordered him to strip out — on the yard. Black testified that in the prison culture, an order to strip out in public is very disrespectful, and not commonly done. Black refused to strip out on the yard and was "hot" with the officers for asking him to do so. The officers called Powers on the radio, Powers instructed the officers to take Black into the gym nearby. Powers ordered that the handcuffs be taken off of Black. Powers said something like, "so you think you are a tough guy," and then Powers punched Black. At that point, other officers joined in and took Black to the ground.

  Two other inmates testified. The first was inside the gym, heard a scuffle inside, saw Black go in, saw Black come out and heard what he thought was a scuffle in the gym. Another inmate testified he also heard the scuffle, and saw part of what happened in the gym. Afterwards, Powers instructed the inmate to "clean this mess up," referring to the inside of the gym. Powers had been interviewed by the FBI at some point during the pre-trial process, and told the FBI he struck Black during that incident in order to bring him under control. Lt. Wise ("Wise") testified that he came on duty after the Black incident as a supervisor, checked to see if there had been any incidents that required his attention and found there had been none, nothing was recorded in any way. Soon after Wise started his shift, Payne went to medical and reported an injury. Medical staff then contacted Wise because there were had been no reports to support an incident that would have resulted in an injury to Payne.

  Wise called Payne to find out what had happened. Payne said there was an incident with an inmate and he had been injured. Wise ordered that reports be written. Those reports were introduced at trial. They all reflected an incident between the group of officers and Black, and they all claimed that Black had assaulted Powers. Wise thought it was very unusual that no administrative action had been taken against Black. Inmate assaults on staff were taken very seriously.

  The suspected perjurious testimony concerning the Black incident was as follows: Correctional Officer Tuttle testified for the defense and said that Powers did not assault Black. (Haag Tr. 780-783)

 Chester Incident

  The Chester incident was explained to the jury through testimony of Correctional Officer Bill Schembri ("Schembri"), Correctional Officer Judy Glover ("Glover"), former Correctional Officer Mather, former Correctional Officer Joe Manzano ("Manzano") and the inmate/victim, Leonard Chester ("Chester"). A teacher at PBSP and several other witnesses also testified about motive.

  Schembri testified that he was in a gun tower and was approached by Officer Bill Jones. Jones said something to the effect that Powers wanted Jones to see who was working the tower. Jones told Schembri that an inmate that was going to be hit on the yard — and for Schembri to look the other way. Schembri did not know the inmate who Jones was talking about. He didn't know if Jones was serious or not. Schembri thought it might be a test or a joke. Schembri asked Jones questions about the prisoner and Jones described the inmate as a Black man who normally wore blue sunglasses. Schembri then knew who Page 11 Jones was talking about. After further questioning, Jones told Schembri the yard was going to be recalled late, and Schembri needed to look the other way. After Jones left the gun tower Schembri called his wife, who also worked at PBSP. Nothing happened that day.

  The next day Schembri had the same assignment. At some point he left his post and went to run an errand. As Schembri was returning, he heard the yard being called down, looked over and saw that the same inmate whom Jones had been talking about — Chester — had been stabbed on the yard. Schembri responded to the incident. Powers was on-site and ordered Schembri to preserve the crime scene. Schembri saw the weapon that had been used to stab Chester.

  Judy Glover also testified. She was an investigator at the prison and was called to the yard in response to the stabbing. Glover said Powers was in charge of the yard. Glover went out to the yard and saw that an inmate had been stabbed. Schembri pointed out the weapon. Glover asked Powers if he had any suspects and he said he did not. Glover took control of the weapon and went to interview Chester, who had been taken to medical. Glover asked Chester who stabbed him. Chester said he'd already told Powers who did it. Glover returned to Powers and asked Chester's statement. Powers said it wasn't true. Glover again asked Powers if he had a suspect. Powers said he didn't because there were too many people on the yard. Glover observed that in her absence, Powers had begun to allow inmates go back to their cells. She later determined he had made no effort to record the names of the inmates on the yard at the time of the stabbing, nor did he search them when they returned to their cells.

  Chester testified that he had been having run-ins with officers who worked with Powers. He had been approached a couple of days before the stabbing by Officers Sanders and Payne, who strip searched him. Sanders said to Chester something to the effect of, "we know what you are up to and we'll take care of our business on the yard." That made Chester nervous about the officers. Chester wanted to return to his cell the day he was stabbed. He approached Officer Mather and asked to go back to his cell. Mather called the office, and then told Chester that "per the Lieutenant," he was not allowed to let Chester go his cell. Mather told Chester he needed to talk to the Lieutenant. When Chester crossed the yard to talk to the Lieutenant, he was stabbed.

  Officer Manzano was in the control booth when Jones came in to speak with Schembri. Manzano remembered Jones coming into the control booth and speaking to Schembri. Manzano also testified the discussion had something to do with an inmate being in trouble.

  The suspected perjurious testimony presented by Ms. Haag was as follows: Jones testified for the defense and denied that he had a conversation in the gun tower with Schembri. (Haag Tr. 784-789)

 F. The Failure to Promptly Commence the Administrative Investigations.

  Parry retired from the Department of Corrections on July 17, 2002. Thereafter, the leadership positions he held in LEIU and OIS were filled by a series of "acting" Assistant Directors. (Parry Tr. 430) For example, George Ortiz served for a short period of time as the acting Assistant Director in LEIU, followed by Rick Rimmer. Moore became the acting Assistant Director of OIS. Meanwhile, investigator Reynosa returned to LEIU and began a series of assignments on the streets (Parry Tr. 431; Reynoso Tr. 523).

  The Jones, Matlock, and Tuttle investigations, which Parry assured the Special Master would begin in June 2002, did not in fact begin for four months. The reason for the four month delay is not in dispute. Moore, the acting Director of OIS, simply did not prepare the requisite 989 forms until October 2002. Although OIS agent Bob Ballard ("Ballard") was told in May or June 2002 he would be assigned to Page 12 investigate the cases, he was not officially assigned until October. (Ballard Tr. 271-272; Barbara Tr. 31, 32, 35-36) See also the 989's dated October 8, 2002 (Exhibits 4, 6 & 7).

  An internal affairs investigation cannot begin without a signed 989. Sound policy reasons exist for the 989 requirement, to ensure that the nature of the investigation and the specific subjects are carefully documented. (See, e.g. Grout Tr. 559; Ballard Tr. 275, 285). The delay starting the three cases proved critical. Under California' Peace Officer Bill of Rights ("POBAR") law enforcement personnel have a statutory right to receive formal notice of administrative discipline within one year after the date that management learns of the facts that may justify discipline. The one-year POBAR statute of limitations is "stayed" during criminal prosecutions. Thus, the statute of limitations concerning the investigations of Correctional Officers Jones, Matlock, and Tuttle required that the investigations be completed and the decision to impose discipline or not be made within one year after the Powers/Garcia criminal trial ended. To their credit, the investigator and lawyer team led by Parry made an initial contact with Melinda Haag in a timely manner. Moores' four month delay, however, dealt the investigations a serious setback from which they never recovered, as explained below.

  The evidence is also undisputed that the 989 forms prepared by Moore in October 2002 were vague and repetitive. Indeed, instead of spelling out the different factual situations that required investigations, Moore simply prepared one inaccurate, generic description for all three cases. Exhibits 4, 6 & 7. (Barbara Tr. 37; Ballard T. 295-296). See also Court expert Dr. Patrick Maher's reports concerning the three investigations, Exhibits 46-48.

  Finally, the evidence is uncontradicted that, in addition to failing to prepare the 989's in a timely manner and failing to prepare adequately specific 989's, Moore did not tell investigator Ballard about the Post-Powers administrative investigation plan. Likewise, Gaultney, the Assistant Chief Counsel of ELU, failed to inform Barbara, the attorney he assigned to the cases, about the Post-Powers administrative investigation plan. Thus, the two men directly responsible for implementing the CDC's plan were not aware it existed. (Barbara Tr. 17; Ballard Tr. 277-279)

 G. The Post Powers/Garcia Investigation.

  The course of the three investigations are summarized on the investigation chronologies attached as Exhibits 1, 8 & 9. The investigations were woefully inadequate concerning timing, documentation, and completeness. Court expert Dr. Patrick Maher provides an analysis of the cases in Exhibits 46-48. He concludes the cases were understaffed, were not adequately investigated, and that facts existed, at the time the investigations were shut down by the Director of Corrections, that warranted the cases being completed. Simply stated, Ballard and Barbara were placed into an impossible position given the existing time pressures, inadequate assistance, and their lack of knowledge of the Post-Powers investigation and discipline plan. As Dr. Maher reports, there was significant evidence that officer misconduct did take place. At the very least, the investigations were improperly stopped before all of the relevant facts were obtained. The Special Master agrees with Dr. Maher's findings.

  Some investigative tasks were completed. For example, Ballard interviewed inmate Black on November 26, 2002 at California State Prison Sacramento. Ballard found Black to be truthful. (Ballard Tr. 300) Shortly thereafter, Ballard and Barbara traveled to Southern California to interview Correctional Officer Schembri (Barbara Tr. 45; Ballard Tr. 301-303) Schembri informed them, in a taped interview that he had been told by Jones to look away when inmate Chester was to be stabbed in a Pelican Bay recreation yard, consistent with his testimony at the Powers/Garcia criminal trial. Barbara and Ballard found Schembri to be a credible witness (Barbara Tr. 47 & 48) After his interview with Schembri, Barbara came Page 13 to the conclusion that he could prosecute Officer Jones (Barbara Tr. 48).

  On the other hand, there were aspects of the investigation that were not followed-up on, and faulty information was obtained that was not properly verified. For example, Ballard requested the personnel file of Mather from PBSP on January 8, 2003. Mather was a critical witness in the Perez incident. Ballard never received the file. (Ballard Tr. 303-304). Ballard was also told that inmate Perez had mental health problems. He conveyed this false information to Barbara. (Barbara Tr. 41-42). Neither Ballard or Barbara took steps to verify the information with PBSP mental health clinicians; indeed, there was no effort to review Mr. Perez's medical file (although Mr. Ballard did attempt to schedule a personal interview with Perez, as explained ...


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