Moltzen v. State Personnel Board CA3

Filed 2/22/21 Moltzen v. State Personnel Board CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

ERIC MOLTZEN, C090322

Plaintiff and Appellant, (Super. Ct. No. 34-2018- 80003017-CU-WM-GDS) v.

STATE PERSONNEL BOARD et al.,

Defendants and Respondents;

DEPARTMENT OF CORRECTIONS AND REHABILITATION et al.,

Real Parties in Interest and Respondents.

The Department of Corrections and Rehabilitation (Department) imposed a five percent pay reduction for six months following an incident in which plaintiff Eric Moltzen, a correctional officer at Folsom State Prison, pepper-sprayed an inmate. The Department concluded plaintiff’s use of force constituted neglect of duty, willful

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disobedience, and other failure of good behavior. The State Personnel Board (Board) upheld the decision. Plaintiff filed a petition for writ of administrative mandamus in the trial court, which the court denied. (Code Civ. Proc., § 1094.5.) On appeal, plaintiff contends the Board’s decision is not based on substantial evidence and violated his right to due process because he lacked notice of a clear policy prohibiting his use of force. We conclude the evidence is sufficient to sustain the Board’s decision, and therefore we will affirm the trial court’s denial of the petition for writ of mandamus. FACTS AND PROCEEDINGS Factual Background Plaintiff began working as a correctional officer at Folsom State Prison in January 2003. On February 12, 2017, plaintiff worked his regular shift, which included distributing meal trays to inmates and picking up meal trays and trash. Plaintiff first unlocked the inmates’ food ports, and he and another correctional officer passed out meal trays. Plaintiff gave inmate Aaron Coleman his meal tray. Another inmate asked plaintiff a question, which caused plaintiff to forget to lock Coleman’s food port. After distributing the meal trays, plaintiff proceeded to collect the meal trays and trash. As he approached Coleman’s cell, he saw Coleman’s tray, trash, and an unopened milk carton lying on the floor in front of his cell door. Plaintiff placed the tray and the trash on the ledge of Coleman’s food port and told him to dispose of the trash properly. The food port unexpectedly slammed shut, pushing the trash onto the floor in Coleman’s cell. Coleman grabbed the milk from the floor of his cell, opened it, and started throwing milk through the cell door onto the tier. Plaintiff ordered Coleman to stop. Coleman ignored the order and continued throwing milk, several drops of which landed on plaintiff’s jumpsuit.