Hinton v. N.C. Dep't of Pub. Safety

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

HINTON V. N.C. DEP’T OF PUB. SAFETY

2022-NCCOA-450

Opinion of the Court

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.

HINTON V. N.C. DEP’T OF PUB. SAFETY

2022-NCCOA-450

Opinion of the Court

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

HINTON V. N.C. DEP’T OF PUB. SAFETY

2022-NCCOA-450

Opinion of the Court

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

HINTON V. N.C. DEP’T OF PUB. SAFETY

2022-NCCOA-450

Opinion of the Court

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

HINTON V. N.C. DEP’T OF PUB. SAFETY

2022-NCCOA-450

Opinion of the Court

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.

HINTON V. N.C. DEP’T OF PUB. SAFETY

2022-NCCOA-450

Opinion of the Court

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

HINTON V. N.C. DEP’T OF PUB. SAFETY

2022-NCCOA-450

Opinion of the Court

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,

HINTON V. N.C. DEP’T OF PUB. SAFETY

2022-NCCOA-450

Opinion of the Court

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.

HINTON V. N.C. DEP’T OF PUB. SAFETY

2022-NCCOA-450

Opinion of the Court

¶ 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

HINTON V. N.C. DEP’T OF PUB. SAFETY

2022-NCCOA-450

Opinion of the Court

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

HINTON V. N.C. DEP’T OF PUB. SAFETY

2022-NCCOA-450

Opinion of the Court

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,

HINTON V. N.C. DEP’T OF PUB. SAFETY

2022-NCCOA-450

Opinion of the Court

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.