McAlister v. State Personnel Bd. CA5

Filed 4/1/15 McAlister v. State Personnel Bd. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MALCOLM McALISTER, F068970 Petitioner and Appellant, (Kern Super. Ct. No. S-1500-CV- v. 278104-SMG)

STATE PERSONNEL BOARD, OPINION Respondent.

DEPARTMENT OF CORRECTIONS AND REHABILITATION,

Real Party in Interest.

APPEAL from a judgment of the Superior Court of Kern County. Susan M. Gill, Judge. Yarra, Kharazi, & Clason and H. Ty Kharazi for Petitioner and Appellant. No appearance by Respondent. Stephen A. Jennings and Clayton A. Mack, Staff Counsel, for Real Party in Interest. -ooOoo-

INTRODUCTION Appellant Malcolm McAlister was dismissed as a correctional officer after prison authorities reviewed a video depicting him shoving an inmate’s head into a door frame. McAlister challenges the superior court’s refusal to disturb the State Personnel Board’s decision sustaining the dismissal, and argues that there was insufficient evidence he intentionally injured the inmate. He also contends that reversal is warranted because seven pages of the administrative record are missing from the clerk’s transcript on appeal. We reject McAlister’s contentions and affirm the judgment. PROCEDURAL BACKGROUND Effective January 24, 2012, appellant Malcolm McAlister was dismissed from his position as a correctional officer with the California Department of Corrections and Rehabilitation at Kern Valley State Prison. In the notice of adverse action regarding the dismissal (Gov. Code, § 19574), the warden of Kern Valley State Prison cited a January 19, 2011, incident where McAlister allegedly used unnecessary force on an inmate. The notice also claims McAlister failed to report the use of force and lied about the incident in a report. McAlister appealed his dismissal to the State Personnel Board. (See Gov. Code, § 19575.) An administrative law judge (ALJ) heard the appeal on June 11, 2012. The ALJ made several findings of fact and sustained McAlister’s dismissal. The State Personnel Board adopted the ALJ’s findings and decision. McAlister petitioned the Kern County Superior Court for a writ of mandamus compelling the State Personnel Board (the “Board”) to reverse its decision. (See Code Civ. Proc., § 1094.5.) The Department of Corrections and Rehabilitation (the “Department”) opposed the petition as the real party in interest. The superior court denied McAlister’s petition, and he now appeals.