State Personnel Board
Filed 7/16/13 Bautista v. State Personnel Board CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
JAVIER
BAUTISTA,
Plaintiff and Appellant,
v.
STATE
PERSONNEL BOARD,
Defendant and Respondent;
DEPARTMENT
OF CORRECTIONS AND REHABILITATION,
Real Party in Interest and Respondent.
F065049
(Super.
Ct. No. 11C0119)
APPEAL
from a judgment of the Superior Court
of
County. James LaPorte,
Judge.
Thomas
Perez for Plaintiff and Appellant.
No
appearance for Defendant and Respondent.
Alfred Mondorf
and Stephen A. Jennings for Real Party in Interest and Respondent.
-ooOoo-
INTRODUCTION
Javier
Bautista appeals a judgment denying his petition for writ of administrative
mandate that challenged the decision of the State Personnel Board (SPB) upholding
the California Department of Corrections and Rehabilitation’s (CDCR)
determination to terminate his employment.
He challenges the administrative law judge’s finding that his testimony
was not credible. He further contends
the evidence was insufficient to support the finding that he was dishonest for
failing to report the use of force. We
reject these contentions and affirm the judgment.
PROCEDURAL BACKGROUND
Javier
Bautista and Abel Garcia were dismissed from their employment with the CDCR
following an incident in December 2007.
Each appealed the dismissal to the SPB.
The matters proceeded jointly and the administrative law judge (ALJ)
heard seven days of testimony taken in December 2009 and March 2010.
On October 7, 2010, the ALJ issued
his proposed decision. The decision
sustained the dismissals and found that the conduct of Bautista and Garcia
constituted inexcusable neglect of duty, willful disobedience, and failure of
good behavior.
On October 19, 2010, the SPB
sustained the dismissals and adopted the ALJ’s findings of fact, determination
of issues, and proposed decision.
Thereafter,
Bautista filed a petition for writ of
administrative mandamus with the Kings Superior Court. On February 22,
2012, the trial court issued an order denying the petition. More particularly, the trial court found that
Bautista’s version of events was not supported by the evidence. It concluded that the SPB acted within its
jurisdiction, Bautista received a fair trial, the findings and evidence
supported the decision, and the penalty imposed was not an abuse of discretion.
FACTUAL BACKGROUND
On December 8, 2007, Bautista, a
correctional officer, and others were assigned to work various positions in
O-Wing at the Correctional Training Facility in Soledad. During the course of the third watch shift,
Officer Eugenio Vancine was “gassed†by an inmate, Juan Martinez, with a
substance later determined to be tooth powder.
Vancine asked his partner that evening, Officer Bryan Neville, to notify
Sergeant Abel Garcia.
Garcia
responded to the tier and requested the assistance of Bautista and Officer
Chance Andes. Garcia determined the
inmate should be removed from his cell.
Because the area in front of the inmate’s cell—number 121—was so small,
two individuals could not stand shoulder-to-shoulder in the platform area. Vancine stood sideways to Garcia’s right.
Vancine, Andes
and Officer Jaime Moreno testified that Garcia, Bautista, and Vancine stood on
the platform in front of cell 121.
Garcia claimed he was accompanied by Bautista and Andes. Bautista did not remember who accompanied him
and Garcia. Next, an officer was
directed to key the cell door to remove the inmate. Vancine and Andes
testified that Vancine keyed the door.
Garcia testified he directed Andes to do so
because he had already ordered Vancine to report to the infirmary.
the cell door because he was focused solely on the inmate.
Once the
cell door was opened so that the inmate could be handcuffed, Garcia and
Bautista alleged the inmate resisted by tensing his hands and looking back over
his shoulder as if preparing to spit at, kick, or head-butt Garcia. On the other hand, Vancine and Andes
indicated the inmate did not resist and, in fact, complied with directives to
back up to the cell door and to “cuff up.â€
Garcia and Bautista testified they applied appropriate force to overcome
the inmate’s resistance. Vancine
testified the force was unnecessary and excessive because the inmate was
compliant.
Once the
inmate was handcuffed, Garcia and Bautista escorted the inmate out of the cell
and onto the tier. They were followed by
Vancine, Andes, and Moreno. According to Bautista, no force was required
to gain the inmate’s compliance during the tier escort. Andes did not observe
any contact between either Garcia or Bautista and the inmate, but testified he
heard a slap during the escort. As he
looked in the direction of the sound, he heard an inmate in cell 113 state, “[H]oly
shit, he slapped him.†Inmate Daniel
Schafer testified the “mood was real aggravated†as the escort group moved down
the tier. He then observed Garcia strike
the inmate twice, and Schafer exclaimed, “[H]oly S, he just hit him.†Moreno
did not see the inmate resist, nor did he see Garcia slap the inmate during the
escort.
Intending
to place the inmate in a holding cell, Garcia and Bautista reached the
officers’ station area. Vancine, Andes,
and Moreno followed. Bautista testified the inmate continued to
move his head in an aggressive manner while at the entrance to the holding
cell. Once the holding cell door was
opened and the inmate began to enter, Bautista released his grip and let Garcia
take over. Bautista then began removing
his latex gloves and turned away.
Bautista did not recall observing any force used at the holding cell; he
did not see Garcia hold the inmate against the wall of the holding cell. Andes testified that
Garcia pushed the inmate’s face into the closed holding cell door. Once the door to the holding cell was opened,
Garcia pushed the inmate inside. Moreno
testified that when he arrived at the officers’ station, Garcia and Bautista
were holding the inmate against the holding cell door. Moreno
heard Garcia tell the inmate something like “[W]ho do you think you are gassing
my officers?†The inmate was not
resisting. Vancine testified when he
arrived at the officers’ station, the inmate’s face was pressed to the back of
the holding cell by Garcia. Garcia then
made a reference to Corcoran and struck the inmate in the head, neck, and upper
torso with his fists. Garcia testified
he did not consider slamming the inmate against the wall of the holding cell to
be a use of force. Andes
considered Garcia’s act of shoving the inmate into the holding cell to be
unnecessary.
title="">[2]
Meanwhile,
Lieutenant Angela Kester responded to the tier after being advised that an
inmate was being removed from his cell.
Upon arrival, she observed Garcia and Bautista escorting an inmate up
the tier. She returned to her office and
waited for Garcia to brief her. When he
did not, Kester returned to the tier.
Arriving at the officers’ station, Kester noted the inmate had already
been placed in the holding cell. Garcia
advised Kester that the inmate had turned on him when they were attempting to
cuff the inmate back at the cell. As a
result, Garcia’s hand was injured. It
was shaking, red, and swollen. Kester
directed both Garcia and Vancine to report to the infirmary.
Garcia and
Vancine were evaluated at the infirmary.
Before the two returned, a medical assistant telephoned Kester to advise
her that Garcia’s hand injury needed to be evaluated at an outside hospital,
and that Garcia had indicated his injury occurred while taking an inmate to the
ground. Because there was a possibility
of injury to the inmate, Kester ordered he, too, be medically evaluated.
When Garcia
and Vancine returned to O-Wing, Kester spoke briefly with Garcia. Garcia testified Kester told him not to worry
about writing his report as it could be taken care of later. Garcia was then transported to an outside
hospital for treatment. The others
involved were to write their reports by the end of their shift. Vancine and Andes
alleged they were encouraged by Bautista to inaccurately report that Andes
had keyed the door to cell 121.
name="_ftnref4" title="">[4] Bautista denied doing so and testified Andes
told him that he had keyed the door. Andes
was also approached by Garcia to report that he, rather than Vancine, had keyed
the door to cell 121. Both Andes
and Vancine testified that their original incident reports were inaccurate or
incomplete.
When Garcia
returned from the hospital, he advised Kester he could not complete his
incident report as a result of his hand injury.
The doctor excused Garcia from work temporarily. Kester indicated she would type Garcia’s
report; it was prepared and approved of by Garcia, but he never signed it. Garcia claimed he refused to sign it because
it was not accurate.
Kester also
assisted Bautista by preparing his report.
His original incident report failed to document that he and Garcia had
given the inmate verbal orders to back up and cuff up while at cell 121. Bautista reviewed and signed the report typed
by Kester; he never indicated it was inaccurate in any way. Bautista admitted signing the typed report,
but testified he was not comfortable with it.
He felt if he did not sign the typed version, his failure to do so would
amount to insubordination.
A few days
after the incident, both Vancine and Andes submitted
amended incident reports. Those
supplemental reports were accurate and complete accountings of the incident.
Bautista
Has Failed To Comply With The Court’s Previous Order Dated October 18, 2012
Bautista
initially filed his opening brief on October 16,
2012. On October 18, 2012, the court
found the brief failed to comply with California Rules of Court, rule
8.204. Specifically, the brief failed to
provide adequate citations to the record, and more particularly, omitted
conflicting evidence presented by respondent below. Bautista was expressly advised that “a party
who challenges the sufficiency of the evidence to support a finding must
summarize the evidence on that point, favorable
and unfavorable, and show how and why the court erred.†(Italics added.) Bautista has failed to remedy this
deficiency.
In the
amended opening brief filed November 13,
2012, Bautista’s statement of facts presents only those facts favorable to his position, to wit: the testimony offered by Bautista and Abel
Garcia. Bautista fails to even
acknowledge the contrary testimony offered by a number of other witnesses. Where an appellant presents only facts and
inferences favorable to his position, the court may deem his substantial evidence
challenges waived. (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177
Cal.App.4th 209, 218.) Because Bautista
has failed to fulfill his obligations concerning the discussion and analysis of
substantial evidence, we deem the issue waived.
In any event, a review of the evidence leads to the conclusion that
substantial evidence supports the factual findings.
DISCUSSION
I. Standard of Review
Pursuant to
the procedures for imposing discipline on a state employee, CDCR has the
initial responsibility to determine whether there is cause for discipline and,
if so, what discipline to impose. (Gov.
Code, § 19574.) The employer must
give the employee notice of and reasons for the proposed action and give the
employee an opportunity to respond. (
The
employee has the right to a review of the disciplinary action by the SPB. (Gov. Code, § 19588; Code Civ. Proc.,
§ 1094.5; Boren v. State Personnel
Board (1951) 37 Cal.2d 634.) The SPB
is a state administrative agency with adjudicatory powers under the state
Constitution. (Cal. Const., art. VII,
§§ 2, 3; Department of Parks &
Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 823 (
On review of a disciplinary action, the SPB acts like a trial court in
ordinary judicial proceedings (e.g., making factual findings and exercising its
discretion). (Parks, supra, at p.
823.) The SPB may appoint an ALJ to
conduct an evidentiary hearing and issue a proposed decision, which the SPB may
adopt or reject in whole or in part.
(Gov. Code, § 19582; California
Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575,
583.) The SPB may overturn the
employer’s imposition of discipline for one of three reasons: (1) the evidence does not establish the fact
of the alleged cause for discipline; (2) the employee was justified; or (3)
cause for discipline is shown but is insufficient to support the level of
punitive action imposed. (
Thereafter,
an employee may challenge the SPB’s decision by filing a petition for writ of
administrative mandate in the superior court.
(Code Civ. Proc., § 1094.5; State
Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512,
522.) “Because the [SPB] derives its
adjudicatory authority from the state Constitution rather than from a
legislative enactment, a superior court considering a petition for
administrative mandate must defer to the [SPB’s] factual findings if they are
supported by substantial evidence.†(
Admin., supra, at p. 522.) That standard of review is satisfied if the
“record discloses substantial evidence (reasonable, credible and of solid
value) such that a reasonable trier of fact could have found as it did.†(Parker
v. State Personnel Bd. (1981) 120
Cal.App.3d 84, 87.) In so doing, the
trial court resolves all conflicts in the evidence and makes all reasonable
inferences in favor of the SPB’s decision.
(California Youth Authority v.
State Personnel Bd., supra, 104
Cal.App.4th at pp. 584–586.) The trial
court must uphold the SPB’s (and the ALJ’s, if adopted by the SPB) evidentiary
rulings, unless there is a clear showing of abuse of discretion. (Tudor
Ranches, Inc. v. State Comp. Ins.
Fund (1998) 65 Cal.App.4th 1422, 1431–1432.) Likewise, the trial court must uphold the
SPB’s decision regarding the penalty imposed unless the penalty is an abuse of
discretion. (Parks, supra, 233
Cal.App.3d at pp. 831–832.) An abuse of
discretion is shown where the action exceeds the bounds of reason. (Ibid.)
Review
under the substantial evidence standard is highly deferential to the fact
finder. (Escobar v. Flores (2010) 183 Cal.App.4th 737, 748.) Under this standard, the California Supreme
Court has observed that it is “very difficult for a complaining employee to
have the board’s adverse factual findings overturned.†(State
Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963,
977.)
On appeal
from the trial court’s judgment, an appellate court reviews the SPB’s decision,
not the trial court’s decision. We apply
the same standards of review that the trial court applied. (California
Youth Authority v. State Personnel Bd., supra,
104 Cal.App.4th at p. 584.) We must
uphold the SPB’s factual findings if supported by substantial evidence. (Valenzuela
v. State Personnel Bd. (2007) 153 Cal.App.4th 1179, 1184;
We do not reweigh the evidence. (
II. The Credibility Findings
Regarding Bautista’s Testimony
Bautista
contends the ALJ erred in finding he was not credible because his testimony
conflicts with the testimony offered by Officers Vancine, Andes and Moreno, and
Inmate Schafer.
title="">[5] He also contends the trial court erroneously
“credited [Inmate] Martinez’s report of Garcia’s use of force to Correctional
Lieutenant Jordan.†He claims that
because the inmate did not testify, his statements to the investigator are
inadmissible hearsay, not subject to any recognized exception.
With
specific regard to credibility determinations, the ALJ found Bautista’s
testimony was not to be believed because he often “gave convoluted, vague
answers to simple questions†and “made numerous inconsistent statements
regarding the incident.†For example,
Bautista told investigators that the inmate was compliant at the holding cell
and walked in willingly. However, at the
hearing Bautista testified he did not observe the inmate enter the holding
cell. In contrast, the ALJ particularly
noted the straightforward and professional testimony of both Vancine and Andes,
and how that testimony was supported by the testimony of other witnesses. The ALJ also found Vancine, Andes, Moreno,
and Kester were without motive to fabricate charges against Bautista. It was additionally noted that by revealing
their initial incident reports were not accurate, Vancine and Andes exposed
themselves to discipline. The ALJ
determined that Bautista’s testimony that he did not consider his actions or
those of Garcia to amount to a reportable use of force was “patently
unbelievable.†The ALJ’s credibility
determination concluded as follows:
“It is believed, then, that Garcia allowed Vancine to
stay on the tier after being gassed, that he ordered Vancine to key the door to
Cell 121, and that Vancine complied. It
is also believed that Martinez did not resist during the escort or at the
holding cell, but that Garcia slapped him during the escort; shoved him against
the holding cell door; shoved him toward the back wall of the holding cell; and
pushed his face against the back wall of that cell. It is further believed that Bautista, while
actively engaged in controlling Martinez, saw Garcia’s use of force during the
escort and at the holding cell.
Additionally, it is believed that [Garcia and Bautista] told Andes to
report that he keyed the door, and Bautista told Vancine to report that Andes
keyed the door. It is also believed that
Kester told Garcia to sign his incident report, but he did not do so in an
effort to cover up his use of force.
Finally, it is believed that Bautista knowingly failed to report
Garcia’s use of force against Martinez for the purpose of covering up Garcia’s
misconduct.â€
At page 14
of his decision, the ALJ noted that Bautista’s statements to investigators
constituted dishonesty pursuant to Government Code section 19572, subdivision
(f). Those statements included (1)
Martinez was resistive during the escort and kept moving his head from side to
side; (2) no force was used to put Martinez in the holding cell; (3) Andes
keyed the door to cell 121; (4) he did not tell Vancine or Andes to report that
Andes had keyed the door to cell 121; (5) he did not read Andes’s report; and
(6) his incident report was accurate.
Credibility
is not a finding of fact subject to review for substantial evidence. Credibility is a determination made by the
finder of fact that the witness is telling the truth. The finder of fact may base that
determination on
“any matter that has any tendency in reason to prove or
disprove the truthfulness of his testimony at the hearing, including but not
limited to any of the following:
“(a)
His demeanor while testifying and the manner in which he testifies.
“(b)
The character of his testimony.
“(c)
The extent of his capacity to perceive, to recollect, or to communicate any
matter about which he testifies.
“(d)
The extent of his opportunity to perceive any matter about which he testifies.
“(e)
His character for honesty or veracity or their opposites.
“(f)
The existence or nonexistence of a bias, interest, or other motive.
“(g) A
statement previously made by him that is consistent with his testimony at the
hearing.
“(h) A
statement made by him that is inconsistent with any part of his testimony at
the hearing.…†(Evid. Code, § 780.)
In this
matter, the credibility determinations are supportable. The ALJ saw the witnesses testify, observed
their demeanor, and was uniquely situated to assess credibility. (Wilson
v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 877-878.) And, the testimony of a single witness can
constitute substantial evidence and
support a finding, even in the face of countervailing evidence. (Phelps
v. State Water Resources Control Bd. (2007) 157 Cal.App.4th 89, 99.) Here, the ALJ specifically found the
testimony of Vancine and Andes to be credible.
Moreover, their testimony was supported by the testimony of other
witnesses. The testimony offered by
Vancine and Andes contradicted Bautista’s testimony. Further, Bautista’s testimony was
characterized by the ALJ as convoluted, inconsistent, and “patently
unbelievable.†On this record, the ALJ’s
findings are supported by substantial evidence.
There was substantial evidence to contradict the testimony offered by
Bautista, as well as Garcia’s testimony.
Vancine, rather than Andes, keyed the door at Garcia’s direction. Inmate Martinez was slapped by Garcia during
the tier escort, and unnecessary force was used by Garcia when Martinez was placed
in the holding cell. Further, there is
substantial evidence to support the ALJ’s findings that Bautista encouraged
Vancine and Andes to report inaccurate information in their incident reports.
With regard
to Bautista’s reference to the use of Inmate Martinez’s statements concerning
the incident, we agree that Martinez’s statements to Special Agent Gary Jordan
are hearsay to which no exception applies.
subdivision (c) provides that administrative hearings
“need not be conducted according to technical rules
relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it
is the sort of evidence on which responsible persons are accustomed to rely in
the conduct of serious affairs, regardless of the existence of any common law
or statutory rule which might make improper the admission of the evidence over
objection in civil actions.â€
A victim’s statement to an investigating agent is this type
of evidence. Subdivision (d) of
Government Code section 11513 provides that hearsay “may be used for the
purpose of supplementing or explaining other evidence,†with the qualification
that over timely objection such hearsay “shall not be sufficient in itself to
support a finding unless it would be admissible over objection in civil
actions.â€
Here,
Martinez’s statements were used only to supplement or explain other
evidence. Additionally, while Bautista
objected to the evidence, Martinez’s statements were not the only evidence relied
upon to support the ALJ’s findings.
Bautista
essentially asks us to reweigh the credibility
of the witnesses against him. As
previously stated, however, it is not our function under the substantial evidence
standard of review to reweigh the evidence or determine the credibility of
witnesses. Rather, we are to review the
evidence for substantial evidence to support the SPB’s findings. And we make all reasonable inferences in
favor of the SPB’s decision. (
Personnel Bd., supra, 104
Cal.App.4th at p. 584; Valenzuela v.
State Personnel Bd., supra, 153
Cal.App.4th at p. 1184; Parks,
decision is supported by substantial evidence.
No abuse of discretion occurred.
III. The Findings that Bautista
Failed to Report Garcia’s Use of Force
Next,
Bautista contends there is insufficient evidence he failed to report Garcia’s
use of force. More particularly, he
contends that (1) because CDCR withdrew its allegations regarding use of force
against Martinez at cell 121, there is no evidence Garcia used unnecessary
force; (2) only Inmate Schafer observed unnecessary force used against Martinez
during the tier escort, and his credibility is suspect; and (3) there is
insufficient evidence Bautista had knowledge of Garcia’s use of force at the
holding cell. Bautista also questions
the ALJ’s findings regarding dishonesty as it relates to the keying of cell
121.
Initially,
despite Bautista’s assertion to the contrary, the ALJ did not fault Bautista
for failing to report the use of force in cell 121. Rather, the ALJ expressly referenced the use
of force during the escort and at the holding cell. Accordingly, we find his argument on this
point fails.
With regard
to the tier escort, Bautista contends Andes and Moreno did not observe any use
of force by Garcia. He further contends
Vancine did not remember any use of force on the tier and that he himself
testified no force was used. Bautista
asks us to infer that because only Inmate Schafer testified to observing
Garcia’s use of force, and because he is a convicted felon, Schafer’s
credibility is suspect. Bautista fails
to recognize, however, that while Andes testified he did not
escort, Andes heard force used. Specifically, Andes testified that he “heard
a slap,†“[l]ike a skin to skin, like a clap or skin to skin contact.†Immediately thereafter, Andes heard Inmate
Schafer say something like “[H]oly shit, he slapped him.†Further, while Bautista characterizes
Vancine’s testimony as Vancine not remembering force being used during escort,
the record establishes Vancine was not present during the entire escort. In fact, Vancine testified that after the
inmate was removed from cell 121 and escorted onto the tier, he returned to the
cell to retrieve his pepper spray and then pushed the hot food cart off of the
tier. Therefore, in light of Andes’s
audible perception, Schafer’s corroborating testimony, and the fact Vancine was
otherwise occupied while the inmate was escorted off the tier, there is
substantial evidence to support the ALJ’s finding that Bautista failed to
report Garcia’s use of force on the tier.
There is
also substantial evidence to support the ALJ’s finding that Bautista failed to
report Garcia’s use of force at the holding cell. While Bautista himself testified that when
they arrived at the holding cell he relinquished his hold on the inmate,
allowed Garcia to take over, and turned away to remove his gloves, there is
evidence to the contrary. Moreno
testified Garcia and Bautista were holding Martinez against the closed holding
cell door. Moreno also testified
Bautista opened the holding cell door and placed the inmate inside. Consistent with Moreno’s account, Andes
testified force was used by Garcia against the inmate at the holding cell and
that Bautista was present at that time.
Vancine testified that when he arrived at the officers’ station, Inmate
Martinez was restrained and not resisting.
Nevertheless, Vancine then observed Garcia strike the inmate in the
upper torso, head, and neck. Vancine
testified Bautista was standing to the left of the holding cell; Vancine did
not recall whether Bautista was facing the cell. In light of this evidence, it was reasonable
to conclude Bautista witnessed and failed to report Garcia’s use of force at
the holding cell.
Finally,
with regard to Bautista’s assertions there is insufficient evidence to support
the ALJ’s finding that he was dishonest, we disagree. Andes and Vancine testified Bautista
encouraged them to inaccurately report that Andes rather than Vancine keyed the
cell door. While Bautista testified
otherwise, inconsistencies and conflicts are for the ALJ and SPB to
resolve. Again, we do not reweigh
evidence on review. (
Personnel Bd. (2004) 121 Cal.App.4th 1601, 1611; see also
471, 483.)
In sum,
reviewing all the evidence and reasonable inferences in favor of the SPB’s
decision, we conclude it is supported by substantial evidence. (California
Youth Authority v. State Personnel Bd., supra,
104 Cal.App.4th at p. 584; Valenzuela v.
State Personnel Bd., supra, 153
Cal.App.4th at p. 1184; Parks,
DISPOSITION
The trial
court’s denial of Bautista’s petition for writ of administrative mandate is
affirmed. As the prevailing party,
respondents may recover their costs on appeal, if any. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
__________________________
PEÑA, J.
WE CONCUR:
________________________________
KANE, Acting P.J.
________________________________
FRANSON, J.
name="_ftn1" title="">[1]Vancine
testified Garcia neither ordered him off the tier nor to report to the
infirmary. His testimony was
corroborated by Andes. Additionally,
Bautista testified that he did not hear anyone direct Vancine to leave the
tier.
name="_ftn2" title="">[2]Officer
Alejandro Coronado, whose name does not appear in the O-Wing logbook as having
been granted access to the area at the time of the incident, testified that he
saw Garcia attempting to maintain control of the inmate. He did not see Garcia push the inmate; rather
Garcia’s arm was on the small of the inmate’s back and he was holding the back
of the inmate’s head. Coronado observed
no inappropriate use of force.
