Opinion
No. CV-F-02-6619 REC LJO P, (Docs. 63 64).
January 30, 2006
On April 1, 2005, Defendants filed a Motion for Reconsideration of the Order Denying the Motion for In Camera Review. Upon due consideration of the written arguments and the record herein, the Court GRANTS the Motion for Reconsideration as set forth herein.
I. Background
Kenneth Martinez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this 42 U.S.C. section 1983 action. Plaintiff claims that Defendants Cathey, Alcantar, Fischer, Marshall, Meske, and Williams (collectively "Defendants") violated his due process rights when their actions caused him to be validated as a member of the Mexican Mafia prison gang and assigned to the Security Housing Unit ("SHU") at California State Prison, Corcoran. (Doc. 1.)
Plaintiff filed a change of address on July 23, 2004, to an ordinary street address in Los Angeles. (Doc. 53.) It appears that Plaintiff is no longer in state custody.
On November 5, 2004, Defendants filed a Motion for Summary Judgment. (Doc. 55.) In support of the Motion for Summary Judgment, Defendants filed declarations of R. Reyff, Deputy Attorney General, and E.W. Fischer. Defendants filed a Motion to seal exhibits A, C, D, and G to the declaration of E.W. Fischer. Defendants urged the court to review the sealed exhibits in camera in connection with the Motion for Summary Judgment. Defendants argued that the exhibits were confidential and should not be disclosed to the public or to Plaintiff. Their reasoning was that disclosure "could endanger the safety and security of the institutions" and "could threaten prison security by divulging the methods and status of investigations into unlawful conduct by inmates." (Fischer Decl. at ¶ 3.)
Magistrate Judge O'Neill granted Defendants' Motion to Seal the exhibits on January 27, 2005. The Magistrate Judge disagreed, however, with Defendants' contention that the court could rely on the sealed documents without disclosing them to Plaintiff. The court refused to rely on the sealed documents unless Defendants would first do one of the following:
1) fully disclose the material under seal to the opposing party who maintains the right to defend against the material contained therein; (2) provide sound legal authority allowing the Court to rely on evidence submitted but not disclosed to the opposing party; or (3) request that the exhibits be withdrawn from the Court's consideration on the dispositive motion.
Order Granting Motion to File Documents Under Seal at 3.
On February 25, 2005, Defendants filed a Response to the Magistrate Judge's Order. (Doc. 62.) They cited authority in support of the court's in camera review of the documents in conjunction with the Motion for Summary Judgment. In the alternative, Defendants asked to withdraw the documents from the court's consideration.
On March 23, 2005, the court issued an order denying the Motion for In Camera Review, granting Defendants' request to withdraw the documents, and directing the Clerk of the Court to return the sealed and lodged documents to Defendants ("Order"). (Doc. 63.)
On April 1, 2005, Defendants timely filed a Motion for Reconsideration of the Order Denying the Motion for In Camera Review (the "Motion"). (Doc. 64.) Plaintiff has not filed an opposition to the Motion.
II. Discussion
A. Standard of Review
According to Local Rule 72-303, a district judge upholds a magistrate's ruling on a referred matter unless it is "clearly erroneous or contrary to law." See Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A).
The "clearly erroneous" standard applies only to a magistrate judge's findings of fact. Concrete Pipe Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623, 113 S. Ct. 2264, 124 L. Ed. 2d 539 (1993). The "contrary to law" standard, on the other hand, allows independent, plenary review of purely legal determinations by the magistrate judge. FDIC v. Fidelity Deposit Co. of Md., 196 F.R.D. 375, 378 (S.D. Cal. 2000);Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992).
B. Accepting Documents Under Seal
The Magistrate Judge held that "the sensitive nature of the documents submitted for sealing" made it appropriate to accept them under seal. Order Granting Motion to File Documents Under Seal at 3. Because this was a finding of fact, the Court will reverse it only if "clearly erroneous." See Concrete Pipe Prods., 508 U.S. at 623 (1993). The Court has reviewed the materials under seal to determine whether they include information likely to threaten penological interests. See Ponte, 471 U.S. at 499. In camera review by the district court is appropriate "if prison security or similar paramount interests appear to require it,. . . ." Id.
One item submitted under seal is the Confidential California Department of Corrections Operations Manual. It contains what appear to be guidelines explaining confidential procedures for combating gang activity. Another item is a letter of April 26, 1999, from inmate Sanchez, an identified gang member, to a third party concerning a business transaction with Plaintiff. Also submitted under seal is a debriefing statement and interview by an inmate indicating that Plaintiff was associated with a prison gang.
The secrecy of prison officials methods, the status of ongoing investigations, and the identity and statements of confidential sources can be important to prison security. See Ponte, 471 U.S. at 499. Keeping these documents under seal is important to maintaining that secrecy. The Court holds that the Magistrate Judge's finding that the sensitive nature of the documents requires them to remain under seal was not clearly erroneous.
C. Due Process Limitations on In Camera Review
Because the documents remain under seal, the Court must decide whether the Magistrate Judge properly declined to consider the documents ex parte in connection with Defendants' Motion for Summary Judgment. The Magistrate Judge reviewed the authority that Defendants cite and concluded that none of it justified supporting a dispositive motion with materials kept under seal from the nonmoving party. Order at 2-3. Generally, ex parte review of in camera submissions is disfavored. American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1070 (9th Cir. 1995). This general rule does not foreclose the possibility that certain exigent circumstances require that a court consider information that is not disclosed to the other party. Id.;see Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986) (national security). The Magistrate Judge, after reviewing the authority Defendants cite, concluded that none of the authority binds it to reach the conclusion that Defendants urge.
Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1985), addressed the importance of review by counsel to determine whether potentially exculpatory evidence was subject to discovery. Id. at 60. The Court held that in camera review by the trial court was sufficient to protect defendant's due process rights. Id. Ritchie does not address the central question at hand because the issue here does not concern discovery, but rather whether a court may decide a dispositive motion based on evidence to which the nonmoving party lacks access. Of some relevance, though, is that Ritchie does express the high court's willingness to allow the trial court to substitute its judgment for that of plaintiff and plaintiff's counsel. Id.
In Ponte v. Real, 471 U.S. 491, 105 S. Ct. 2192, 85 L. Ed. 2d 553 (1985), the Court considered, in a due process context, the manner by which prison officers could explain their reasons for refusing to call witnesses at the inmate's request. The Court held that the reasons why the prison officials refuse to call witnesses
are almost by definition not available to the inmate; given the sort of prison conditions that may exist, there may be a sound basis for refusing to tell the inmate what the reasons for denying his witness request are. Indeed, if prison security or similar paramount interests appear to require it, a court should allow at least in the first instance a prison official's justification for refusal to call witnesses to be presented to the court in camera.Ponte, 471 U.S. at 499. In the context of a due process discussion, this language appears to endorse in camera review of confidential materials. The passage could be construed as permissive, however, entitling the inmate to request that the court review materials in camera in support of plaintiff's assertion that the materials are unreliable. Moreover, the Ponte Court does not explicitly address the due process implications of the trial court's in camera review. Instead, the Court speaks only to what procedure can establish due process in the underlying prison proceeding. Id. At first blush, this seems to be a very fine distinction that the Magistrate Judge draws, but it is a valid one. See Mendoza v. Miller, 779 F.2d 1287, 1291 (7th Cir. 1985) (addressing separately plaintiff's due process challenge to the prison disciplinary committee's reliance on confidential informants and plaintiff's due process challenge to court's refusal to allow him or his counsel to review material submitted to the court in camera).
In Ponte, even the dissenting Justices agreed that "sealed contemporaneous explanations followed by in camera review . . . would satisfy [due process] concerns fully." 471 U.S. at 513 (Marshall, J., dissenting).
The sentence that follows the passage authorizing in camera review indicates that requiring such review could be the plaintiff's prerogative: "But there is no reason for going further, and adding another weight to an already heavily weighted scale by requiring an inmate to produce evidence of which he will rarely be in possession, and of which the superintendent will almost always be in possession." Ponte, 471 U.S. at 499. It is hard to see, however, how by challenging the prison procedure, a plaintiff does not waive his right to object to a permissible means of establishing the procedure's reliability endorsed by the Supreme Court.
Defendants' invocation of the California Code of Regulations is similarly unavailing. Defendants seem to argue that because these materials are confidential for correctional purposes, keeping them from Plaintiff is appropriate in these proceedings as well.See Cal. Code Regs. tit. 15, § 3121(a)(1)-(2). The Magistrate Judge correctly concluded that these regulations do not govern civil procedure in this Court. Though the classified status of documents might be relevant as to whether the documents should be under seal at all, it does not bear on whether using the materials against Plaintiff without his knowledge of their contents is appropriate.
The Ninth Circuit has endorsed in camera review as a means of determining whether confidential information from an unidentified prison informant is reliable. Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir. 1987) (citing Mendoza, 779 F.2d at 1293). The Magistrate Judge correctly concludes that the due process implications of in camera review by the trial judge were not before the Zimmerlee court. It seems unlikely, however, that the Ninth Circuit would hold that in camera review can establish that the prison's administrative proceedings pass due process muster without accepting as a premise that such in camera review is itself permissible. Nevertheless, the Magistrate Judge correctly concludes that Zimmerlee does not bind us to reject a due process challenge to in camera review.
On the other hand, Zimmerlee, combined with the overwhelming weight of other United States Courts of Appeals' authority, does not leave much question as to how the Ninth Circuit would respond to a more specific challenge to a district court's in camera review. The Ninth Circuit has upheld against a due process challenge an in camera evidentiary hearing to determine the validity of informant information where a criminal defendant and his counsel were prohibited to attend. United States v. Anderson, 509 F.2d 724, 728 (9th Cir. 1974). In at least one context concerning government informants, in camera proceedings are "favored procedure." See United States v. Spires, 3 F.3d 1234, 1238 (9th Cir. 1993) (holding that where a criminal defendant seeks disclosure of a government informant "an in camera hearing is favored procedure" to determine whether disclosure of informant's identity would be relevant and helpful to defendant).
The Ninth Circuit relied on Mendoza in Zimmerlee to determine the process by which prison officials could establish reliability of confidential informant statements. Zimmerlee, 831 F.2d at 186-87. In Mendoza, the Seventh Circuit addressed the specific question whether a district court violated an inmate's due process rights by granting summary judgment against his habeas corpus claim based on in camera review of materials concerning confidential informants. 779 F.2d at 1291. The court acknowledged the "concerns for institutional safety and correctional goals" that motivate protection of constitutional informants. Id. at 1295. Balancing these concerns with the inmate's due process rights, the court noted that "[s]ubmission of a confidential report for in camera review allows the court to determine whether the committee's actions were fair, i.e., whether the committee acted in an arbitrary and capricious manner by accepting confidential information without some indication of the reliability of the information." Id. The Seventh Circuit upheld the district court's grant of summary judgment, declining to adopt a general rule allowing inmates or their counsel access to reports containing confidential information. Id. at 1298.
The appellate court in Mendoza did conduct in camera review of the confidential documents to determine whether the inmate's attorney, but not the inmate, should have had access to them.Id. The court determined that denying the inmate's attorney access was permissible because prison officials' decision to withhold them was motivated by concerns for institutional safety.Id.
Another court of appeals has also decided the narrow issue before the Court. Freitas v. Auger, 837 F.2d 806, 810 n. 7 (8th Cir. 1988). That case also concerned the reliability of confidential reports in a prison disciplinary proceeding. Id. at 807. The prisoner argued that denying his counsel access to the confidential reports before the district court denied him an essential due process protection. Id. at 810 n. 7. The appellate court rejected the argument and upheld the district court's denial of 42 U.S.C. section 1983 relief. Id. at 810. The lower court's in camera review of the confidential information provided a satisfactory means of determining the reliability of the prison officials' confidential informants.Id.
Other courts, without explicitly deciding the narrow issue of the due process merits of ex parte in camera review, have endorsed district courts' ex parte in camera review in prison due process cases. See, e.g., Russell v. Selsky, 35 F.3d 55, 58 (2d Cir. 1994); Henderson v. Carlson, 812 F.2d 874, 880 (3d Cir. 1987); Hensley v. Wilson, 850 F.2d 269, 282 (6th Cir. 1988); Taylor v. Wallace, 931 F.2d 698, 702 (10th Cir. 1991).
The Magistrate Judge does not cite, and the Court is unable to find, a single case that refused on due process grounds to consider in camera confidential materials supporting a prison disciplinary action. Authority of the Supreme Court, the Ninth Circuit, and other federal circuits indicates that in camera review in this context is permissible. Accordingly, the Court holds that the Magistrate Judge shall review in camera Exhibits A, C, D, and G to the Declaration of E.W. Fischer for the purpose of deciding Defendants' Motion for Summary Judgment.
Some courts have held that an inmate may have certain limited rights to have his attorney review, subject to a protective order, confidential information that might endanger penological interests in the hands of the inmate. See, e.g., Wagner v. Williford, 804 F.2d 1012, 1017-18 (7th Cir. 1986). Plaintiff, who is currently proceeding pro se, would not benefit from such a privilege. Nor has Plaintiff asked the Court to allow an attorney to review the materials on his behalf. Thus, the Court need not decide whether Plaintiff's due process rights require the Court to allow an attorney to review of the confidential documents for Plaintiff.
ACCORDINGLY:
1. Exhibits A, C, D, and G to the declaration of E.W. Fischer shall remain under seal.
2. The Magistrate Judge shall review the sealed documents in camera and consider them in deciding Defendants' Motion for Summary Judgment.
IT IS SO ORDERED.