Merced Cnty. v. Kong-Brown

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Merced County. No. 19CV-00783 Donald J. Proietti, Judge.

Forrest W. Hansen, County Counsel, Janine L. Highiet-Ivicevic and Thomas E. Ebersole, Deputy County Counsel, for Plaintiff and Appellant.

Rains Lucia Stern St. Phalle & Silver, Timothy K. Talbot and Zachery A. Lopes, for Real Party in Interest and Appellant.

OPINION

SMITH, J.

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Merced County terminated the employment of Billy Bush, a jail corrections officer employed by the Merced County Sheriff's Department. Bush appealed his termination and the matter proceeded to an administrative hearing before an administrative hearing officer. The administrative hearing officer overturned the termination and ordered Bush's reinstatement. The county then sought judicial review of the administrative decision by filing a petition for writ of mandate in the superior court. The superior court denied the county's petition for writ of mandate and upheld the administrative decision. The county now appeals the denial of its petition for writ of mandate. Bush cross appeals. He raises a single, limited issue in relation to the county's appeal, but does not contest the judgment. We affirm.

FACTS AND PROCEDURAL BACKGROUND

This case arose from the termination, on August 24, 2017, of Corrections Officer Billy Bush's employment as a jail corrections officer with the Merced County Sheriff's Department (sheriff's department). Bush had been employed as a jail corrections officer by the sheriff's department since April 2005. The process that led to Bush's termination began when the sheriff's department opened an internal affairs investigation regarding Bush's role in an incident that occurred at the Merced County Jail (the jail) on April 19, 2017. Bush was involved in the incident in his capacity as a jail corrections officer. The internal affairs investigation concluded that Bush had violated multiple policies of the sheriff's department and Merced County (the county) and merited termination. Bush was served with a written notice of the sheriff's intent to terminate his employment with the county; the intent-to-terminate notice charged Bush with violating multiple policies of the sheriff's department and the county. Bush sought a Skelly hearing regarding the charges against him.^[1] Following the Skelly hearing, Bush was terminated.

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Bush appealed his termination under the county's Human Resources Rules and Regulations, pursuant to which the matter was referred for an administrative hearing. The administrative hearing officer overturned Bush's termination and ordered his reinstatement. The county then filed a petition for a writ of mandate (commencing an administrative mandamus proceeding) in the Merced County Superior Court. The superior court upheld the decision of the administrative hearing officer and denied the county's petition. Judgment was entered against the county. The county appealed to this court (Bush also filed a limited appeal). We affirm the judgment.

A. The Administrative Hearing (August 9-10, 2018)

We will describe the jail incident that led to Bush's termination, in summary form, as reflected in the evidence presented at the administrative hearing and contained in the administrative record. The incident occurred during the graveyard shift, on April 19, 2017, and involved a jail inmate, M.R. (M.R. or the inmate). Bush was one of the correctional officers working the graveyard shift that night. The internal affairs investigation into the incident faulted certain actions Bush took in interacting with M.R. and determined that Bush had violated several policies of the sheriff's department and county, including policies concerning the use of force, disobedience, and incompetence.

The graveyard shift at the jail began at 11:00 p.m. Sergeant Christina Johann was in charge of the shift. At the beginning of the shift, Johann briefed all the correctional officers working the shift. Johann informed the correctional officers that M.R. was HIV positive. The correctional officers also learned that, earlier that evening, M.R. had to be confined in a "restraint chair" on account of erratic behavior and the risk he would harm himself or pose a danger to the facility (M.R. had been kicking a glass window in his cell and had cut his foot). The officers were further told that the inmate was either mentally ill or under the influence of drugs or alcohol. Since jail inmates may not be indefinitely confined in a restraint chair, M.R. was eventually moved to a "sobering cell" or "safety cell." He was in the sobering cell when the graveyard shift got underway. The incident

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at issue occurred in the sobering cell. The incident was captured on video; however, the video had no sound or audio component. The video was played at the administrative hearing and is part of the administrative record.

During the graveyard shift, shortly after midnight, jail staff became aware that M.R. was engaging in significant self-harm. Specifically, M.R. started kicking a ground-level glass wall panel or "window" at the front of the sobering cell; he then dropped on all fours and began violently ramming his head into the window. M.R. proceeded to remove all his clothes, and then continued, in the nude, to forcefully smash his head into the window. He struck his head against the window approximately 42 times. He was bleeding from his head and his feet. There was blood in the area where he hit his head against the window, on the floor, and on his body. Witness testimony indicated there was "a lot of blood" and blood was "everywhere."

A number of correctional officers, namely, Bush, Stephen Harrison, Imelda Vivero, and Megan Burk, rushed into the cell when the inmate's violent, self-harming conduct was detected. The actions Bush took in controlling M.R. over the next several minutes lead to his termination. The inmate's HIV positive status, the fact he was bleeding, and the fact there was a large amount of blood splattered in the cell, were major concerns for the responding officers. The only personal protective equipment (PPE) the officers had was latex gloves. It was not a calm situation. Bush was the most senior line officer among the officers there and took the lead in controlling the situation; he acted as a "protector" to the other officers. Sergeant Johann entered the cell with the officers, only to leave to get a camera; she later returned with a camera and took pictures of the inmate.

Burk testified the corrections officers were not trained in techniques for controlling combative inmates who are HIV positive, let alone HIV positive and bleeding. Burk testified: "I remember the guy hitting his head so hard against the window that it was - it was unlike anything that I had ever seen before, I know that."

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Burk added: "There was blood all over the floor where he was hitting his head and on the window where he was hitting his head and [he had] busted his head open." Burk explained the video did not reveal the full extent of the blood in the cell.

As Bush and Harrison entered the sobering cell, they gave verbal commands to M.R. to stop ramming his head into the glass window. Burk also gave commands. M.R. did not comply. At that point, Bush used his expandable baton to strike M.R. two times on his thigh; M.R. stopped hitting his head into the glass and followed instructions to get into a prone position on the floor of the cell.^[2] Harrison started to handcuff M.R.; M.R. would not comply and was refusing to move his right arm. Bush then twice tapped M.R.'s right arm with his expandable baton, using "medium to light" force, and ultimately reached over and grasped M.R.'s arm and moved it so Harrison could handcuff M.R. Sergeant Vince Gallagher, who subsequently conducted the internal affairs investigation into the incident, testified that the use of the baton on the inmate's arm constituted an "unjustified" use of force.

Since M.R. was bleeding from his head, the jail's medical staff was alerted, and a nurse came to the cell. The nurse was nervous about attending to the inmate given his erratic behavior and the blood in the cell. Bush turned the inmate over onto his back, so the nurse would better be able to examine his head wound. It was not possible to position a spit mask over the inmate's head because the nurse needed access to the inmate's head.

The county focused, at the administrative hearing, on three instances where Bush used his feet to control the inmate, from this point forward. Sergeant Gallagher testified that Bush's use of his boot to control the inmate-which included stepping on the inmate-in these three instances, constituted unwarranted use of force under department policy.

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In the first of the three instances, Bush briefly placed his boot on the top of the inmate's head, presumably to prevent movement while the nurse attended to the inmate's wounds. Bush testified at the administrative hearing that his boot was not touching the inmate's head but, rather, he hovered it above the inmate's head, better to control the inmate should the latter make any erratic movements while the nurse attended to his head wound. More specifically, Bush testified: "I actually was not on [the inmate's] head. I was slightly above it just in case he tried to throw his head backwards or make a sudden movement with his head to try to get the blood from his hair onto [others]."

Next, as seen on the video, Bush placed his boot on the inmate's chest/upper abdomen for approximately a minute. He momentarily appeared to shift his weight to the foot that was on the inmate's chest/upper abdomen, rolling his boot; however, the video evidence is not entirely clear on this...