Department Operations Manual

54100.23.5 Granted Third Level Appeal If the Secretary’s level action is to grant and/or endorse a monetary claim, a written response shall be prepared, attached to the appeal package, and returned to the appellant. • Copies of granted appeals for claims of $100 or less shall be forwarded by the third level Appeals Chief to the hiring authority for payment as described in DOM §54100.23.4. • Additional copies shall be sent to the appeals coordinator, and to the records office for inclusion in the appellant ’ s file pursuant to DOM §54100.23.4. Granted second level appeals exceeding $100 shall require third level review and VCGCB approval prior to payment. • Copies of granted appeals for claims over $100 shall be forwarded by the third level Appeals Chief to the VCGCB. • Additional copies shall be forwarded to the hiring authority for inclusion in the appellant’s file, to the appeals coordinator, and to the institution or Central Office accounting office BSS as appropriate pursuant to DOM §54100.23.4. 54100.24

54100.24 Conditions of Parole Appeals Inmates or parolees may appeal discretionary imposition by the Department of special and additional special conditions of parole, requesting removal or amendment of any condition unnecessary for public safety, security or rehabilitation purposes. Prior to filing an appeal, a request to remove or amend an imposed condition or conditions may first be made via a written request (CDCR Form 22) directed to the assigned parole agent and submitted in accordance with the provisions of the Request for Interview, Item or Service article (DOM §54090). • Specific reasons for objection to the condition(s) in question shall be stated and any necessary supporting document or information attached to the request. • An appeal of parole conditions shall be reviewed and signed at the Second Level of Review. Review and Time Limits An appeal regarding a request to remove or amend one or more of the condition(s) of parole shall be filed within 30 calendar days of imposition or within 30 calendar days following receipt of the written confirmation of the supervisor’s decision to uphold the condition(s) as originally imposed (With respect to supporting document requirements, see DOM Section 54100.8). • The first level review shall be waived and the second level of review shall be completed by the regional parole administrator or designee. • Appeals of special conditions of parole shall be addressed by the parole region. • If the appeal is sent to the institutional appeals coordinator by mistake, it shall be forwarded to the appropriate parole region and the inmate/parolee notified that the appeal has been forwarded. • The appellant, if dissatisfied with the second level of review, shall forward the appeal to third level. 54100.24.1

54100.24.1 Parole to County of Last Legal Residence Appeals on release to county of last legal residence shall not be accepted until the CDCR Form 611, Release Program Study/Parole Assessment (RPS) has been returned to the institution by the parole region. Institution caseworkers, upon receipt of an appeal alleging safety concerns in the county of last legal residence, shall review and compare the factual information contained in the inmate ’ s C-File. This review shall include a personal interview with the inmate and all information obtained shall be documented by the caseworker on a CDC Form 128-B. A copy of the CDC Form 128-B shall be attached to the appeal prior to submission to the parole region. The appeal shall be sent to the regional appeals coordinator where the RPS was completed, who shall route the appeal to the appropriate assistant RPA for first level review. The RPA shall conduct the second level review. The inmate/parolee may appeal to the third level Appeals Chief if dissatisfied with the second level response. 54100.24.2

54100.24.2 Re-entry Program Placement or Denial Appeals of placement in specific reentry locations or programs shall be sent directly to the appeals coordinator of the parole region from where the decision occurred. The first level review of the placement decision shall be conducted by the supervisor of the staff member who made the decision. The Regional Administrator or designee shall conduct second level reviews. The appellant may, if dissatisfied, forward the appeal to third level. 54100.25

54100.25 Staff Complaints An inmate/parolee appeal which alleges facts that would constitute misconduct by a departmental employee shall be logged as a staff complaint by the appeals coordinator only after review and categorization as a staff complaint. Such review must be completed by an employee designated by the hiring authority at a level not below Chief Deputy Warden, Deputy Regional Administrator or equivalent. • In the context of this Article, “staff misconduct” means staff behavior that violates or is contrary to law, regulation, policy, procedure, or an ethical or professional standard. • Confidentiality of a staff complaint may be achieved through submission as confidential correspondence addressed to any official having responsibility for the custody, parole supervision or care of the inmate or parolee appellant. Hiring authorities receiving such allegations shall, in addition to the requirements of this article, ensure that the procedures and safeguards pertaining to Employee Misconduct investigations/Inquiries (see DOM §31140.4) are satisfied. • Unless circumstances suggest a potential threat to the safety and security of the institution or persons, appeals which generally allege misconduct but provide no facts or evidence of behavior that could be construed as misconduct, shall ordinarily be rejected and sent back to the sender for additional information. If the appellant does not provide the requested clarification of the alleged misconduct the appeal need not be processed as a staff complaint. • This process is distinct from the filing of a citizen’s complaint lodged pursuant the provisions of Penal Code §832.5 by a person not under the jurisdiction of the Department. • A staff complaint alleging excessive or inappropriate use of force shall be addressed pursuant to the procedures set forth in 15 CCR §§ 3268- Operations Manual DEPARTMENT OF CORRECTIONS AND REHABILITATION Chapter 5 Page 519 3268.2. • Upon referral after date stamping, the hiring authority of the involved area will review and/or respond to any staff complaint except those filed directly against the hiring authority or above. When an appeal is received alleging staff misconduct that also includes issues such as property complaints, classification actions, or other issues, the appeals coordinator will: • Inform the inmate/parolee in writing that the appeal will be addressed as a “staff complaint” and that other appeal issues(s) may only be appealed separately and resubmitted if the intention is to seek resolution of those issues. • 30 day time constraints for the additional appeal begin the date the inmate/parolee receives notice from the appeals coordinator of the above determination. In the event the hiring authority makes a determination that the complaint will not be categorized as a staff complaint, it shall be processed as a routine appeal based upon the issues raised including those alleged as misconduct. The appeal response must show why the appeal did not meet criteria for processing as a staff complaint, explaining how the issues raised were not indicative of misconduct. 54100.25.1

54100.25.1 Rights and Responsibilities Statement An appeal that alleges misconduct by a departmental peace officer as defined in 15 CCR §3291(b) shall be accompanied by the 15 CCR §3391(b) Rights and Responsibility Statement. • An appeal received without such statement shall be processed and the statement obtained from the appellant at the time of the initial appeal interview. • Should the inmate/parolee refuse to sign the Rights and Responsibilities Statement, the appeal shall be cancelled for lack of cooperation. • Cancellation does not relieve the Department of its responsibility to address alleged staff misconduct as revealed or suggested via the cancelled appeal. Therefore, the appeal shall be returned to the hiring authority for determination if an inquiry remains appropriate in light of the refusal to cooperate. • The result of any such inquiry shall not be shared with the appellant and the appellant will not be considered to have exhausted adminstrative remedies. 54100.25.2

54100.25.2 Processing of Staff Complaints No less than weekly (within five working days), complaints alleging staff misconduct will be presented by the appeals coordinator to and shall be reviewed by the hiring authority or designee who shall make a determination whether the allegation will be processed as a staff complaint. That determination shall consider whether the appeal alleges staff behavior which would be a violation of law, regulation, policy, procedure or prevailing professional or ethical standards. Such misconduct need not be the focus of the appeal, but if facts are alleged which suggest misconduct, the matter must be referred to the hiring authority to determine the following type of processing: • As a routine appeal, but not as a staff complaint, as there is no evidence to suggest staff misconduct. • As a confidential staff complaint appeal inquiry as the nature of the allegation or the lack of evidence makes adverse action unlikely. • As a referral to Internal Affairs for an investigation as the evidence or the circumstances suggest that adverse action is likely if the allegations are proven. The employee shall be notified as soon as possible in accordance with any applicable bargaining unit agreement when an appeal is accepted as a staff complaint unless the hiring authority determines that the matter involves a confidential investigation that would be compromised by such notice. If the hiring authority makes a determination that the complaint warrants an Internal Affairs investigation, the following shall occur: • The appeals coordinator shall bypass the first level review and respond at the second level, noting that the appeal is granted or partially granted and referred for an Internal Affairs investigation. • An Internal Affairs Investigation Request shall be completed and forwarded to the Office of Internal Affairs with all accompanying information and documentation. • Upon completion of the investigation, the appellant shall be notified of the outcome. When an allegation does not warrant an Internal Affairs investigation or the matter is declined by the Office of Internal Affairs, but does warrant an inquiry, the following shall occur: • The appeals coordinator will assign the staff complaint for a first or second level response at the discretion of the hiring authority. • A Confidential Appeal Inquiry shall be conducted in conjunction with the review response. • Review and approval of the Confidential Appeal Inquiry supplement by the hiring authority or their delegated representative no lower than the level of a Chief Deputy Warden or equivalent shall occur. • The appellant need not be interviewed by the person preparing the appeal response if a confidential inquiry has been completed. • The appeal inquiry supplement with a red cover sheet attached, designating it as confidential, is to be placed in the appeal file. The appellant will not be provided a copy. • After completing interviews with pertinent witnesses, the subject of the staff complaint may be interviewed (if necessary to reach a determination) by a person trained to conduct administrative reviews. A Notice of Interview shall be served at least 24 hours prior to such interview. • If the subject chooses to waive the 24 hour requirement, he or she must indicate this at the time he or she is given notice. • Upon voluntary waiver, the subject may be interviewed immediately, if desired. • At the time of the interview the subject of the interview shall be served with an advisement of rights which is to be signed prior to any interview. • The subject may request to record the interview and will be allowed to retain their copy of the recording. However, under such circumstances, a concurrent separate recording shall be made by the Department and retained in the appeal office. Only the subject can initiate a request to record the interview. • Pertinent witnesses are those individuals in possession of information or knowledge necessary to come to a reasonable conclusion as to whether or not policy was violated. • The witnesses need not be noticed or admonished, nor shall a witness be allowed to record the interview or have a representative present. • If at any time during the course of the appeal inquiry the reviewer discovers information indicating misconduct may have taken place of a severity that would likely lead to adverse personnel action the reviewer shall: • Cease further interviewing of staff or inmates/parolees. • Bring the matter to the attention of the hiring authority. • The hiring authority shall make a determination whether the matter will be referred for Internal Affairs investigation. • The confidential inquiry shall review the information available to determine whether policy was violated and the confidential report shall summarize the review and include a determination of the findings concerning the allegation. • The author of the report shall provide sufficient facts and testimony to reasonably support the conclusion(s) given. • This report shall be kept with the appeal file in the Appeals Office and no other copies shall be kept or maintained except as described in this subsection or as needed for third level review or litigation. The document is strictly confidential to all inmates and any staff except those involved in the inquiry process or ligitation involving the Department. • Accused staff may view the confidential report in the appeals office upon approval of the Litigation Coordinator, but if any information relating to other staff is contained therein, a copy shall be made and that confidential information redacted prior to the review. Neither the original nor the copy shall leave the appeals office (except as specified above) and any redacted copy shall be placed with the original after review. The institution/parole region’s appeal response to a staff complaint shall inform the appellant of the status of the referral for investigation and outcomes as follows: • The referral for investigation and the status of the investigation. Additionally, the appellant shall be notified of the outcome at the conclusion of the investigation. Operations Manual DEPARTMENT OF CORRECTIONS AND REHABILITATION Chapter 5 Page 520 • The decision to conduct a confidential inquiry and whether the findings determined that the staff in question did or did not violate department policy with regard to each of the specific allegations(s) made. • In the event that the matter is rejected by Office of Internal Affairs (OIA) due to insufficient evidence and the hiring authority elects not to complete an inquiry because the OIA review is sufficient to exonerate staff, the appellant shall be noticed that a finding has been made that policy was not violated. An appeal alleging staff misconduct by an appeals coordinator shall be reviewed by the hiring authority for determination of processing. If accepted for processing at the first level, neither the appeal response nor the Confidential Supplement to Appeal, Appeal Inquiry shall be prepared or reviewed by staff assigned to the Appeals Office. 54100.26

54100.26 Reserved 54100.27

54100.27 Health or Safety Complaint (CALPIA) Inmates employed by CALPIA shall submit any complaint concerning perceived health or safety hazards relating to prison industries to the prison industries’ safety committee, in accordance with Labor Code (LC) and Industrial Relations regulations. • The CDCR Form 602-1 shall not be used for the purpose of such complaints. A Cal/OSHA form for the reporting of alleged safety or health hazards may be used, but is not required. • A health and safety complaint should not be used by inmates as a substitute for verbally or otherwise informing staff of an urgent health or safety situation requiring immediate response or action. An inmate who believes a health or safety hazard exists in a CALPIA operation is afforded the opportunity to submit a written complaint. • The complaint shall be deposited in a readily accessible complaint box or presented to any CALPIA staff member, including the inmate supervisor, member of the health and safety committee, or the affected shop superintendent or their equivalent. • Any CALPIA staff member receiving a written health and safety complaint for an inmate worker shall direct it to the health and safety committee for review and response. If the inmate finds the committee’s conclusions to be unsatisfactory for any reason, he or she may request the complaint be forwarded to the Department of Industrial Relations, Division of Occupational Safety and Health (DOSH). • The CALPIA Health and Safety Unit shall coordinate the submission of any health and safety complaint submitted pursuant to this section which cannot be resolved by the Safety Committee or for which the complainant is not satisfied to DOSH. • DOSH shall determine whether any complaint is bona fide and respond in accordance with the requirements of LC Subsection 6304.3(b). Should the inmate believe that retaliatory action has taken place as a result of the complaint, the inmate may file a CDCR Form 602-1, Grievance, of this alleged retaliation with the institution appeals coordinator. 54100.28

54100.28 Movie/Video Selection or Exclusion Appeal Movies/videos that have been given a rating of other than “G”,” “PG,” or “PG - 13” by the Motion Picture Association of America are not approved for either general inmate viewing or for viewing within institutional classrooms, and are not subject to appeal at any level. The first level of appeal shall be waived for appeals related to the selection or exclusion of a “G,” “PG,” or “PG - 13” rated or non-rated movie/video for viewing and the second level response shall constitute the Department’s final response o n appeals of this nature. 54100.29

54100.29 Term Computation Appeals Whenever an inmate or parolee files a CDCR Form 602-1, which sets forth a specific, clearly stated claim regarding an error in the computation of a term of confinement or period of parole based upon documentation in the record, and the issue is not resolved (granted) at the first level, the inmate or parolee may request a computation review hearing. (Reference: Haygood v. Younger, (1985)-769 F. 2d 1350.) • Other classification, pay or work time issue appeals shall be addressed by a classification committee or work supervisor, and shall not warrant a computation hearing. • The only issue to be determined in the hearing is whether or not an error has been committed which adversely affects a term of confinement or period of parole. • The computation review hearing, when scheduled, shall constitute the second level of review. 54100.29.1

54100.29.1 First Level Parole period and term computation appeals shall be reviewed at the first level by the Department’s records staff. The inmate or parolee must state in detail the alleged error or reason for disputing the calculation of his or her release date. The case records staff shall research the case, considering case law and Department policy and procedure. If the relief requested is not granted at the first level, the CDCR Form 602-1, Grievance, shall be returned to the inmate or parolee along with two copies of the CDC Form 1031, Notice of Right to Request a Computation Review Hearing. The inmate/parolee shall sign the notice acknowledging receipt. The signed form shall be returned to case records staff for filing in the miscellaneous section of the inmate ’ s/parolee ’ s C-File. The inmate/parolee shall retain the second copy. 54100.29.2

54100.29.2 Appeals Coordinator If the inmate or parolee wishes to have a computation review hearing, he or she shall submit the same CDCR Form 602-1 to the appeals coordinator. The appeals coordinator shall forward the CDCR Form 602-1 within five working days of receipt to the case records supervisor/manager. The case records supervisor/manager shall date stamp and log the appeal on the CDC Form 1059, Computation Review Hearing Log. 54100.29.3

54100.29.3 Second Level The case records supervisor/manager shall schedule the computation review hearing, which shall be held within 15 working days of receipt of the CDCR Form 602-1. The case records supervisor/manager shall send two copies of the CDC Form 1032, Notice of Time, Date and Place of Computation Review Hearing, to the inmate or parolee who shall be notified at least 24 hours prior to the hearing unless the inmate or parolee waives the time constraints. The counselor or designated staff shall immediately return the signed original to the case records staff for logging on the CDC Form 1059. The case records supervisor/manager shall research the case, taking into consideration all case law and department policy and procedures. 54100.29.4

54100.29.4 Hearing The case records supervisor/manager shall conduct the hearing during the inmate’s non -assigned hours. • Other staff designated by the institution/parole administration may attend this hearing. Location of the hearing shall be at the discretion of local authorities. • It may be necessary to conduct the computation review hearing by telephone for those inmates housed in camp, other jurisdictions and parolees. • If so, the completed notice of time, date, and place of computation review hearing shall reflect that the inmate/parolee was advised of the time of the hearing by telephone or other means. If it is determined an error has been made, the case records manager/supervisor shall grant the appeal and correct the error. • At the conclusion of the hearing, two completed copies of the CDC Form 1033, Computation Review Hearing Decision, shall be made. A completed copy shall be given to the inmate. • At the conclusion of a computation review hearing conducted by phone, the inmate/parolee shall be advised of the decision and that a completed computation review hearing decision shall be mailed that day. If the appeal is a matter that the Department has no authority to change, the appeal shall be denied. The appellant will be referred to the appropriate agency or court with jurisdiction of the matter for disposition. If the appeal is a sentencing discrepancy of which the Department seeks clarification from the sentencing court, the appeal shall be partially granted to the extent that an inquiry is being pursued and the Department shall pursue clarification of the noted discrepancy from the appropriate court. 54100.29.5

54100.29.5 Electronic Records Management System (ERMS) The CDCR Form 602-1 and the original CDC Form 1033, Computation Review Hearing Decision shall be sent to the appeals coordinator for processing. Upon completion of processing, a copy of the CDCR Form 602-1 and the CDC Form 1033 shall be forwarded to Case Records along with the CDC Form 1031, Acknowledgement of Receipt and the CDC Form 1032, Notice of Time, Date, and Place of Computation Review Hearing for placement into the ERMS. 54100.30

54100.30 Joint Venture Program (JVP) Employer Related Grievances The Department’s participation in the Joint Venture Program is authorized pursuant 15 CCR §§ 3480-3486. Any current or former Joint Venture inmate- employee who believes he or she has a grievance regarding a wage and hour or retaliation claim against a JVP employer shall submit the written grievance Operations Manual DEPARTMENT OF CORRECTIONS AND REHABILITATION Chapter 5 Page 521 to the JVP Chief. • The JVP Chief shall attempt to resolve all complaints. • Time frames for filing grievances will be governed by the Division of Labor Standards Enforcement’s (DLSE) statutes of limitations, including but not limited to, Labor Code §98.7, and Code of Civil Procedure §§337, 338 and 339, for the appropriate type of complaint. • If the inmate is dissatisfied with the JVP Chief’s decision, the inmate may file a complaint with the Labor Commissioner. 54100.31

54100.31 Appeals Reports Institution and parole region appeals coordinators shall prepare and provide reports upon request. These appeal reports may include appeal types, outcomes, volume, and similar statistical results of appeal actions. As necessary, the Office of Appeals shall audit and compile this data in reports distributed to departmental administrators, the courts, and other jurisdictions or agencies. 54100.32

54100.32 Revisions The Director, Division of Adult Institutions, in conjunction with the Director, Division of Adult Parole Operations, or designee shall ensure that the content of this Article is accurate and current. 54100.33

54100.33 References Civil Rights of Institutionalized Persons Act; Title 42 U.S.C. §1997 et seq. Public Law 96-247, 94 Stat. 349. Title 28 Code of Federal Regulations §35.107. PC §§ 148.6, 832.5, 832.7, 832.8, 3003(a), 5054, 5058, 5058.4(a) 10006(b). GC §§ 935.6, 965, 3300-3313, 19570-19575.5, 19583.5(a), and 19635. CCP §§337, 338, 339. LC §§98.7, 6304.3. CCR Title 15 §§ 3084 and 3086, 3138, 3190-3195, 3220.4, 3268-3268.2, 3312, 3314, 3318, 3220, 3326, 3376.1, 3383, 3480-3486. CCR Title 8 §§ 344.40, 344.41, 344.42, 344.43. Titles I and V of the Americans with Disabilities Act of 1990 (Pub. L. 101- 336) ( ADA ), as amended (Volume 42 of the United States Code, beginning at §12101. Wolff v. McDonnell, 418 U.S. 539 (1974). Armstrong v. Schwarzenegger, United States District Court, N.D. Cal., No. C- 94-2307 CW, Stipulation and Proposed Order issued November 30, 2006. Vasquez v. State of California, 105 Cal.App.4lh 849 (2003) as implemented by the Stipulated Injunction and Order entered by the Superior Court of San Diego County in Case No.GIC-740832. Haygood v. Younger (1985) 769F, 2nd 1350. Board of Parole Hearings, Administrative Directive 04/01, May 1, 2004. A RTICLE 54 — I NVESTIGATION OF G ASSING I NCIDENTS Effective June 23, 2005 54110.1