(Super.Ct.No. CIVRS913393) APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco, Judge. Affirmed.
The opinion of the court was delivered by: Hollenhorst Acting P. J.
CERTIFIED FOR PUBLICATION
Real party in interest Thomas Norton appeals from a judgment granting the petition of plaintiffs and respondents the California Department of Corrections and Rehabilitation (DCR) and Matt Cate, Secretary of the DCR, for writ of administrative mandamus ordering defendant State Personnel Board (SPB) to reinstate Norton's termination. Norton contends substantial evidence supports the SPB's finding that (1) the DCR failed to prove that Norton told an inmate to hang herself, and (2) the SPB did not abuse its discretion by reducing Norton's penalty from termination to a 30-day unpaid suspension. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
Norton had been employed as a correctional officer with the Department at the California Institute for Women since 1997. For five years before November 2006, he had worked first watch (10:00 p.m. to 6:00 a.m.) on the Support Care Unit (SCU) where mentally ill inmates are housed.
On May 17, 2007, the DCR sent Norton a notice of adverse action
stating that he was dismissed from his position as a correctional
officer effective May 27, 2007. The notice listed 12 separate
allegations,*fn2 including allegation F, as follows:
"On or about November 23, 2006, you were negligent by failing to
report or respond to a suicidal statement made by Inmate X-10000.*fn3
Specifically, Inmate X-10000 advised you that she was
going to hang herself, you replied 'go ahead,' or go ahead and hang
yourself, or words to that effect."
Allegation E stated that "you [Norton] were negligent in the performance of your duties and acted in a discourteous manner towards Inmate X-10000. Specifically after Inmate X-10000 advised you that she was 'scared of the dark' and was 'seeing things,' you subsequently refused her repeated requests to turn on her cell light."
Allegation H was that "[b]etween November 24, 2006 and November 28, 2006, you attempted to intimidate a witness in a potential Internal Affairs Investigation. During telephone conversations with Correctional Officer Ryan Campos, you inquired about information that Campos was planning to include in his November 24, 2006, Incident Report, you referred to Campos as a 'snitch' and asked Campos 'Are you a pussy?' or words to that effect."
Allegation I was that "[b]etween November 24, 2006 and December 8, 2006, you acted in a discourteous fashion towards Correctional Officer Ryan Campos. During conversations with [10 other listed] Correctional Officers . . . you disclosed that Campos had cried and/or became emotional following the attempted suicide of Inmate X-1000. During your December 2006 conversation with Correctional Officer Darryl Hernandez, you referred to Campos as a 'rat' and a 'punk,' or words to that effect, relative to Campos having alleged that you engaged in acts of misconduct prior to, during and following the attempted suicide of Inmate X-1000, you also claimed that Campos had not been truthful in his reporting of the circumstances surrounding the incident. . . . [y]ou also claimed that Campos had lied about the incident."
Allegation K stated: "On December 3, 2006, you exercised undue influence over an Internal Affairs Investigation through your documentation and encouragement of other officers, to document unfavorable information relative to Inmate X-10000. You did so in an effort to compile information against Inmate X-10000 to discredit her as a witness. [A correctional officer on duty in the SCU] on December 3, 2007 observed you engaged in suspicious behavior. [He] observed you writing information on inmate X-10000's institutional bed card and transposing information from the Unit Log Book. You admitted during your interrogation that you made an entry to Inmate X-10000's bed card on December 3, 2006, but dated it November 24, 2006. You also admitted that you made a photocopy of that bed card because you believed the information could be useful should an investigation into InmateX-10000's suicide attempt be conducted, or words to that effect. On December 3, 2006, while you were in the SCU Officers Station . . . you commented that it 'was important for [the correctional officers] to document all of Inmate X-10000's behavior because she was a problem[']; or words to that effect."
Allegation L stated: "On December 3, 2006, you were away from your post without permission. Specifically, you abandoned your work area of responsibility and reported to the Support Care Unit without approval of a supervisor. You were observed . . . in the Support Care Unit (SCU) on December 3, 2006. Sergeant Frazier asked you what business you had in the SCU. You replied that you came to the unit to retrieve some pain medication from your locker and that you had permission from your work supervisor to be over in the SCU area, or words to that effect. . . . Sergeant Frazier called . . . your designated supervisor for that day[, who] denied that you were given permission to leave you[r] post assignment as a security and escort officer . . . ."
Norton appealed his termination, and a hearing was conducted by Administrative Law Judge Byron Berry.
At the hearing, Correctional Officer Ryan Campos testified that he had been a correctional officer for about six years. In November 2006, he was working the 10:00 p.m. to 6:00 a.m. shift in the SCU with Norton. The SCU has four corridors lined with cells that radiate like an "X" from a central office. Each hour, one of the two correctional officers on duty does a security check of the unit while the other correctional officer observes from the central office. Inmate V. (also referred to as Inmate X-10000) was in the first cell to the right coming from the control booth.
On November 23, 2006, while Campos was in the office, he heard Inmate V. screaming in her cell, and he heard her ask Norton to turn on her lights, but Norton "didn't do it, he was just messing with her." Inmate V said she had been hearing voices and was scared. Other inmates started yelling for Norton to "just turn the lights on," but Norton refused. After Norton returned to the office, Inmate V. continued to scream. Norton went back to her cell, and Campos heard her say "something of the nature that she was going to kill herself." He heard Norton say, in response, "Go kill yourself, go hang yourself."
When Campos did a hall check at about 11:50 that night, he discovered Inmate V. hanging from a bar beneath the top bunk with a torn sheet around her neck. Campos entered her cell and untied the sheet to get her down. She recovered without injury.
Following the incident, Campos was ordered to write a report. Norton asked Campos three times what Campos was going to write and also asked Campos for a copy of the report. Campos testified that during the night of November 27-28, 2006, Norton telephoned him and said he knew Campos had told, and that he was a snitch. In another telephone conversation, Norton called Campos a "pussy" and a "snitch" and asked if Campos was scared. Campos prepared three written reports; however, he did not state in any of them that Inmate V. had said she was going to kill herself or that Norton had responded that she should go ahead. The first time Campos reported that conversation was in an interview in January 2007 with Internal Affairs. Campos stated he did not disclose the conversation in his reports because the reports were seen by others, and he did not "want to let [him]self out there to be ostracized by [his] peers." He did not document Norton's calling him a snitch and a pussy because he feared retaliation, but he did immediately report the matter to his lieutenant.
In his memorandum report of November 29, 2006, Campos informed his supervisor of the "actions of [Norton] that played a significant role" in Inmate V.'s attempted suicide. The report stated that Norton had been conducting a security check while Campos was in the central office. Campos could see Norton in front of Inmate V.'s cell talking to her in a loud voice. Campos stated: "I could hear [Inmate V.] screaming that she wanted her light left on because she was delusional and was scared of the dark. Officer Norton then walked away to the office and [Inmate V.] began to kick on the door and kept on screaming. This lasted for approximat[ely] 10 minutes until Officer Norton walked back to [her cell] and started yelling at [Inmate V.] to 'shut up and go to sleep.' At this time the whole East Hall started to kick their doors and started yelling 'Just turn on her light,' and 'stop messing with her Norton.' At this time I walked towards Officer Norton and asked him if he wanted me to step in, and he replied, 'No, I got it.' So I returned to the office while Norton was still in front of [Inmate V.'s cell] yelling at [Inmate V.] to stop kicking and screaming. Officer Norton again returned to the office and said if [Inmate V.] did not stop kicking and screaming in about 10 minutes I could step in. Inmate [V.] stopped before the 10 minute time period. The whole time in the office[,] Officer Norton was laughing about the whole scenario. . . ."
Campos was on the telephone when Norton was doing the hall check, but Campos could hear what the inmates and Norton were saying. Campos testified that he told Sergeant Martinez and Lieutenant Brooks about Norton's conduct toward Inmate V. that night.
Correctional Officer Francisco Villegas shared first watch in SCU with Norton and Campos; he worked with Norton two days a week and with Campos two days a week. Counsel for the DCR questioned Villegas about a conversation with Norton on November 26: "Did Norton discuss how [Inmate V.] was acting that night?" Villegas responded, "I remember him saying that, that she wanted the light on or off. I don't remember." Counsel for the DCR asked Villegas to read a report and then asked if it refreshed his recollection of the conversation. Villegas replied, "A bit, sure." He testified that Norton had told him Inmate V. said she was going to hang herself, and Norton had "jokingly said go ahead." Villegas was further questioned about whether he had had a conversation with Campos about the events of that night; however, Villegas did not remember if Campos ever told him Inmate V. said she was going to hang herself or that Norton said to go ahead and do so. Norton told him Campos had been nervous and shaken up by the incident. Villegas did not remember having a conversation with Campos about the incident, but he refreshed his recollection by reading a report. He then testified that Campos had gone into detail about his version of what happened that night; however, Villegas did not recall whether Campos told him what Norton had said to Inmate V. He remembered Campos saying he had been on the telephone when he started hearing the inmates yell, but he did not remember Campos ever saying that Inmate V. had said she was going to hang herself.
Sergeant Frank Martinez, Norton's supervisor the night of the incident, stated that he responded to the scene after the suicide attempt was reported, and he determined that Inmate V. was alive and breathing. Campos, who seemed nervous and upset, asked to talk to him. They went outside, and Campos started crying and said in a "jumbled" fashion that "he made her do it, I can't work with him, he made her do it." When Martinez talked with Norton, Norton appeared to be more concerned ...