Hinton v. N.C. Dep't of Pub. Safety ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-450
No. COA21-480
Filed 5 July 2022
Office of Administrative Hearings, No. 20 OSP 03088
JERRY HINTON, III, Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Respondent.
Appeal by Petitioner from amended final decision entered 22 February 2021
by Administrative Law Judge J. Randolph Ward in the Office of Administrative
Hearings. Heard in the Court of Appeals 8 February 2022.
Jennifer J. Knox for Petitioner-Appellant.
Attorney General Joshua H. Stein, by Assistant Attorney General Bettina J.
Roberts, for Respondent-Appellee.
INMAN, Judge.
¶1 Petitioner-Appellant Jerry Hinton, III, (“Mr. Hinton”) appeals from an
amended final decision from the Office of Administrative Hearings upholding his
dismissal from employment as a correctional officer after he assaulted an inmate at
a supermax prison facility. Mr. Hinton contends the Administrative Law Judge: (1)
violated Rule 60(a) of North Carolina’s Rules of Civil Procedure by entering two
amended decisions that substantively modified the original decision; (2) failed to
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make sufficient findings based in substantial evidence that Mr. Hinton’s conduct
constituted excessive force; and (3) erred by failing to consider whether Mr. Hinton’s
alleged misconduct was just cause to dismiss him from employment and whether the
discipline imposed was proper, as required by our caselaw. After careful review of
the record and our precedent, we remand the decision for further findings.
I. FACTUAL & PROCEDURAL BACKGROUND
¶2 The record tends to show the following:
¶3 Mr. Hinton worked for the North Carolina Department of Public Safety
(“NCDPS”) as a correctional officer at Polk Correctional Institution. On 20 July 2019,
Mr. Hinton, along with other officers, was instructed to conduct random searches of
inmates after a weapon had not been recovered from a potential stabbing the previous
night. Mr. Hinton selected five to six inmates, including Johansy M. Santos-Guerra
(“Mr. Santos-Guerra”),1 to search. As Mr. Hinton searched the other inmates, Mr.
Santos-Guerra walked away into the dining hall and joined the lunch line. Mr.
Hinton asked another officer where the inmate had gone, saying “he was going to get
that curly head mother fucker.”
¶4 About one minute later, Mr. Hinton entered the dining hall at a brisk pace and
1 The record and briefs contain various spellings of the inmate’s name. For purposes
of this opinion, we defer to the spelling used by the Administrative Law Judge in the final
decision.
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approached the line where Mr. Santos-Guerra was standing. Mr. Hinton escorted the
inmate out of the line. Mr. Santos-Guerra’s hands were on his head per prison policy.
When Mr. Santos-Guerra turned to Mr. Hinton, seemingly to speak to him, Mr.
Hinton punched him in the face and tackled him to the floor. Mr. Hinton then kneeled
over Mr. Santos-Guerra and struck him three more times in the face and head. Mr.
Santos-Guerra suffered bruising and swelling to his left eye, cheek, and back of his
head and was sent to the hospital for treatment.
¶5 Sergeant Jean Thomas (“Sergeant Thomas”) was in the dining hall during the
altercation and directed Mr. Hinton to release Mr. Santos-Guerra and leave the
dining hall. Sergeant Thomas and another officer, Officer Glean Henderson (“Officer
Henderson”), assisted Mr. Santos-Guerra to his feet. When the inmate saw Mr.
Hinton, he attempted to pull away from the officers and hit Officer Henderson in the
eye with his elbow. Officer Henderson injured his left knee and right shoulder as he
regained control of Mr. Santos-Guerra, wrestling him to the ground. Officer
Henderson had to take three months of medical leave for his injuries.
¶6 Following the incident, Kim Heffney (“Mr. Heffney”), an investigator with
NCDPS’s Office of Special Investigations and a former employee at the North
Carolina State Bureau of Investigations with at least 30 years of experience,
conducted an internal investigation of Mr. Hinton’s conduct by reviewing video
evidence and collecting witness statements. He determined Mr. Santos-Guerra “in
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no way threatened [Mr.] Hinton to warrant [Mr.] Hinton’s use of force” because the
inmate had his hands in the air, above his head, in a known non-aggressive posture
within the facility. Mr. Hinton’s conduct was inconsistent with two policies
implemented at the facility to assist with inmate and prison official safety––that
inmates have their hands on their heads or above their shoulders when outside their
cells and that officers maintain a six-foot reactive radius from inmates. The prison
warden testified that Mr. Hinton’s conduct placed prison staff at risk and that the
situation could have escalated into a riot or large-scale assault.
¶7 On 8 April 2020, Mr. Hinton was dismissed for unacceptable personal conduct
by excessive use of force in violation of the following policies: “The State Human
Resources Manual, Disciplinary Action Policy [R]egarding Unacceptable Personal
Conduct” and “The Department of Public Safety, Prisons Policy and Procedures
Manual, Chapter F .1500, Use of Force .1501.” He appealed his dismissal to NCDPS’s
Employee Advisory Hearing. After a hearing, the Chief Deputy Secretary considered
the severity of the incident, the subject matter, the resulting harm, discipline applied
in similar situations, and Mr. Hinton’s work history. Following the Hearing Officer’s
recommendation, the Chief Deputy Secretary upheld Mr. Hinton’s dismissal.
¶8 After exhausting his internal appeals, Mr. Hinton filed a contested case
petition in the Office of Administrative Hearings alleging he had been dismissed
without just cause. Following a hearing, on 19 February 2021, the Administrative
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Law Judge issued a final decision upholding Mr. Hinton’s dismissal. Three days
later, at 4:10 p.m. on 22 February, the Administrative Law Judge entered an
amended final decision “to correct scrivener’s errors in a name and date, and to
remove extraneous matter” pursuant to Rule 60(a). At 4:30 p.m. on the same day,
the Administrative Law Judge entered a second amended final decision for the same
purpose. The Administrative Law Judge then struck the first amended decision from
the record. Mr. Hinton timely appealed to this Court.
II. ANALYSIS
A. Amended Decisions
¶9 Mr. Hinton argues the Administrative Law Judge’s amendments to the final
decision affected his substantive rights and violated our Rules of Civil Procedure. We
disagree.
¶ 10 Rule 60(a) confers upon our courts the power to correct defective orders:
Clerical mistakes in judgments, orders or other parts of the
record and errors therein arising from oversight or
omission may be corrected by the judge at any time on his
own initiative or on the motion of any party and after such
notice, if any, as the judge orders.
N.C. Gen. Stat. § 1A-1, Rule 60(a) (2021). However, “[c]ourts do not have the power
under Rule 60(a) to affect the substantive rights of the parties or correct substantive
errors in their decisions.” Hinson v. Hinson, 78 N.C. App. 613, 615, 337 S.E.2d 663,
664 (1985) (citations omitted). “A change in an order is considered substantive and
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outside the boundaries of Rule 60(a) when it alters the effect of the original order.”
Pratt v. Staton, 147 N.C. App. 771, 774, 556 S.E.2d 621, 624 (2001) (quotation marks
and citation omitted) (emphasis added).
¶ 11 Here, the original decision affirmed NCDPS’s dismissal of Mr. Hinton for just
cause. The effect of the amended decision entered by the court three days later was
the same.2 See id. The original order inadvertently included references to
insubordination as unacceptable personal conduct, incidents, and disciplinary actions
which clearly did not involve Mr. Hinton. Because the altered portions did not pertain
to Mr. Hinton, it is clear to this Court that these were merely clerical or typographical
errors, not substantive changes altering the effect of the original order. See id. Cf.
H & B Co. v. Hammond, 17 N.C. App. 534, 538-39, 195 S.E.2d 58, 60-61 (1973)
(holding a money judgment was improperly changed to a real property lien). Thus,
the amended decision supersedes the original decision and is operative.
B. Insufficient Findings about Excessive Use of Force
¶ 12 Mr. Hinton argues there is neither substantial evidence in the record nor
sufficient findings in the Administrative Law Judge’s order to support the conclusion
that he violated NCDPS’s use of force policy. We agree, in part, and remand for
additional findings.
2Because the trial court struck the first amended decision from the record, we only
consider the second amended decision in our discussion.
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1. Standard of Review
¶ 13 Our standard of review for just cause decisions is governed by statute. See
Harris v. N.C. Dep’t of Pub. Safety, 252 N.C. App. 94, 98-99, 798 S.E.2d 127, 132
(2017). Our General Statutes provide that an agency’s final decision may be reversed
or modified if the reviewing court determines that the petitioner’s substantial rights
may have been prejudiced because the agency’s findings or conclusions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of the
agency or administrative law judge;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence admissible under
G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire
record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.
N.C. Gen. Stat. § 150B-51(b) (2021). Our standard of review is dictated by the
substantive nature of each assignment of error. § 150B-51(c); N.C. Dep’t of Env’t &
Nat. Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004).
¶ 14 We review questions of law, the first four grounds set forth in the statute, de
novo, whereas fact-intensive issues, the remaining two grounds, are reviewed under
the “whole record test.” N.C. Dep’t of Env’t & Nat. Res., 358 N.C. at 659, 599 S.E.2d
at 894. Under de novo review, we consider the matter anew and freely substitute our
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own judgment for that of the agency. Mann Media, Inc. v. Randolph Cnty. Plan. Bd.,
356 N.C. 1, 13-14, 565 S.E.2d 9, 17 (2002). Applying the whole record test, on the
other hand, we “must examine all the record evidence—that which detracts from the
agency’s findings and conclusions as well as that which tends to support them—to
determine whether there is substantial evidence to justify the agency’s decision.”
Watkins v. N.C. State Bd. of Dental Exam’rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769
(2004). Substantial evidence is “[r]elevant evidence a reasonable mind might accept
as adequate to support a conclusion.” § 150B-2(8c).
2. Discussion
¶ 15 We consider whether the record contains substantial evidence that Mr. Hinton
violated NCDPS’s use of force policy. The use of force policy provides:
The use of force shall be permissible only to the extent
reasonably necessary for a proper correctional objective.
This prohibition shall not be construed to mean that staff
must suffer an assault upon their person before taking
appropriate defensive action or that the use of force by
another must be met with strictly equal force on the part
of the staff.
N.C. Dep’t of Pub. Safety: Prisons, Policy & Procedures: Use of Force, Chapter F,
§ .1503(a) (Aug. 30, 2018). The policy further required officers to give a verbal
command and then attempt to deploy pepper spray before physically engaging with
the inmate. Mr. Hinton testified he was aware of the policies.
¶ 16 Examining all record evidence, including a video recording of the incident,
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first-hand testimony from witnesses, expert testimony, and the use of force policy, we
conclude there was substantial, if not ample, evidence that Mr. Hinton violated
NCDPS’s policy by using excessive force. The video recording shows Mr. Hinton
struck Mr. Santos-Guerra in the face and head at least four times, three while on top
of him on the ground. Mr. Santos-Guerra’s hands were raised above his head in a
non-offensive posture at the time Mr. Hinton first struck him, demonstrating a lack
of resistance. Mr. Heffney testified consistent with the video evidence. Additionally,
though Mr. Hinton instructed Mr. Santos-Guerra to leave the lunch line and he
complied, at no point did Mr. Hinton attempt to use pepper spray before engaging the
inmate with physical violence.
¶ 17 The warden testified about the number of correctional staff present and that
Mr. Hinton’s conduct placed prison staff and the inmates at risk of a riot or large-
scale assault. He also explained the facility had two policies to ensure inmate and
prison official safety: (1) that inmates have their hands on their heads or above their
shoulders when outside their cells, and (2) that officers maintain a “reactionary
distance” of six feet from the inmates. An officer in the dining hall had to brandish
his baton to keep onlooking inmates away from the assault. Upon review of the whole
record, N.C. Dep’t of Env’t & Nat. Res., 358 N.C. at 659, 599 S.E.2d at 894, we hold
there was substantial evidence Mr. Hinton used excessive force, violating NCDPS’s
policy.
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¶ 18 However, the Administrative Law Judge’s findings are insufficient to support
its conclusion that Mr. Hinton’s conduct constituted excessive force. The
Administrative Law Judge’s findings refer to the evidence only in a conclusory
manner and address only the events giving rise to Mr. Hinton’s assault on Mr. Santos-
Guerra, specifically that officers were searching for a shank used in a stabbing the
previous evening. Citing the video exhibit of the incident and the “Final Agency
Decision” generally, the Administrative Law Judge then found, “The preponderance
of the credible evidence received at the hearing supported the accounts of [Mr.
Hinton’s] conduct relied on by [NCDPS] in its decision to discipline [Mr. Hinton].”
The Administrative Law Judge further determined:
Investigator Kim Heffney of the Department’s Office of
Special Investigations (“OSI”) prepared internal
investigations report submitted September 5, 2019. He
investigated whether Petitioner “used unauthorized force”
during the incident “purported [to have] occurred because
the offender entered the dining hall prior to being searched
by CO Hinton.” Mr. Heffney concluded that the Petitioner
used excessive force to subdue offender Santos-Guerra.
¶ 19 Although our appellate review requires us to consider the evidence of record
and determine whether it supports Mr. Hinton’s dismissal, see Watkins, 358 N.C. at
199, 593 S.E.2d at 769, this Court has no authority to make findings of fact, even
those facts which may be derived from a video of the conduct at issue. Those must be
made by the Administrative Law Judge. We remand to the Administrative Law
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Judge for further findings explaining how and why Mr. Hinton’s conduct constituted
excessive force and violated NCDPS’s policy.
C. Just Cause & Proper Discipline
¶ 20 In his final assignment of error, Mr. Hinton asserts the Administrative Law
Judge neglected to consider whether Mr. Hinton’s alleged misconduct amounted to
just cause to dismiss him from employment and whether the discipline imposed was
proper. We disagree.
¶ 21 This Court has summarized the three-part approach to determining whether
just cause exists to discipline a career State employee for unacceptable personal
conduct:
First, determine whether the employee engaged in the
conduct the employer alleges. The second inquiry is
whether the employee’s conduct falls within one of the
categories of unacceptable personal conduct provided by
the Administrative Code. Unacceptable personal conduct
does not necessarily establish just cause for all types of
discipline. If the employee’s act qualifies as a type of
unacceptable conduct, the tribunal proceeds to the third
inquiry: whether that misconduct amounted to just cause
for the disciplinary action taken. Just cause must be
determined based upon an examination of the facts and
circumstances of each individual case.
Warren v. N.C. Dep’t of Crime Control & Pub. Safety, 221 N.C. App. 376, 383, 726
S.E.2d 920, 925 (2012) (cleaned up) (emphasis added). Our Supreme Court
articulated certain factors to be considered in the just cause analysis: “the severity of
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the violation, the subject matter involved, the resulting harm, the [employee’s] work
history, or discipline imposed in other cases involving similar violations.”
Wetherington v. N.C. Dep’t of Pub. Safety, 368 N.C. 583, 592, 780 S.E.2d 543, 548
(2015).
¶ 22 Here, the Administrative Law Judge determined the preponderance of the
evidence justified Mr. Hinton’s dismissal. The Administrative Law Judge then
directly quoted and cited our decision in Warren in one of its conclusions of law.
Conclusion of Law 5 summarizes the North Carolina Administrative Code provision
that Mr. Hinton violated. The Administrative Law Judge echoed Warren’s language
in Conclusion of Law 8: “Considering the specific facts and circumstances of this case,
[Mr. Hinton’s] actions on July 20, 2019 constituted just cause for his dismissal.”
¶ 23 Though the Administrative Law Judge did not cite Wetherington, its findings
reveal it weighed at least some of the factors delineated by that decision. For
example, Finding of Fact 8 addresses “the resulting harm” of the incident, id., and
Mr. Hinton’s conduct, describing Officer Henderson’s injuries and medical leave. The
Administrative Law Judge also considered “the subject matter involved,” id.,describing what gave rise to the events the day.
¶ 24 Even if, as Mr. Hinton argues, the Administrative Law Judge’s factual analysis
fell short, it is clear from the decision that it applied Warren and considered the
Wetherington factors. See Belcher v. N.C. Dep’t of Pub. Safety, 278 N.C. App. 148,
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2021-NCCOA-277, 2021 WL 2425899 (unpublished) (“[A]lthough the ALJ’s factual
analysis fell short, the ALJ analyzed certain facts of Petitioner’s case through an
application of the Warren three-pronged approach and consideration of the
Wetherington factors. The ALJ concluded (1) the preponderance of the evidence
proved Petitioner engaged in the conduct Respondent alleged, (2) the preponderance
of the evidence proved Petitioner’s acts and omissions constituted grossly
unacceptable personal conduct; and (3) the misconduct amounted to just cause for
dismissal.”).
III. CONCLUSION
¶ 25 For the reasons outlined above, we conclude that substantial evidence
supported the Administrative Law Judge’s determination that Mr. Hinton’s conduct
violated the NCDPS use of force policy, but we remand the decision for further
findings not inconsistent with this opinion.
REMANDED.
Chief Judge STROUD and Judge ARROWOOD concur.