Opinion
Case No. 11CV2534-BEN(JMA)
03-10-2014
RAMON LADALE SINEGAL, CDCR # J-95722, Plaintiff, v. E. DUARTE, et al., Defendants.
ORDER FOLLOWING IN
CAMERA REVIEW AND
GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
MOTION TO COMPEL [DOC. NO.
60] AND ENTERING
PROTECTIVE ORDER
Plaintiff Ramon Ladale Sinegal, who is proceeding pro se and in forma pauperis ("IFP") pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915(a), filed a motion to compel discovery on January 21, 2014. [Doc. No. 60]. Defendants Verduzco's and Ortega's Opposition to the motion was filed on February 7, 2014. [Doc. No. 68.] Pursuant to the Court's order, the documents that are the subject of Plaintiff's motion were produced for in camera review. For the reasons set forth below, Plaintiff's motion is GRANTED IN PART and DENIED IN PART.
Plaintiff seeks to compel the production of documents responsive to request numbers 1 and 4 of his Request for Production of Documents, Set One. [Doc. No. 60, pp. 1-3 of 17.] Request No. 1 calls for "[a]ny and all grievances, complaints, or other documents received by prison staff at Calipatria concerning the mistreatment of inmates by Defendants Verduzco and Ortega, and any memoranda, investigative files, or other documents created in response to such complaints." [Doc. No. 68-1, Ex. A, p. 4 of 38.] Request No. 4 calls for "[a]ny logs, lists, or other documentation reflecting grievances filed by Calipatria inmates against Verduzco and Ortega." Id.
In response to Request No. 1, Defendants produced records of Plaintiff's two administrative grievances against Verduzco and Ortega and one administrative grievance against Verduzco, including the California Department of Corrections and Rehabilitation's ("CDCR") responses thereto, but have withheld from production the following three categories of documents that are responsive to both document requests:
1. Confidential Supplements to the Appeal Inquiries arising from Plaintiff's appeals against Verduzco and Ortega;Defendants have asserted the official information privilege applies with respect to all three categories of documents and also that third party privacy interests necessitate withholding the records of third party administrative grievances, as well as the summary chart. [Id., Ex. C, p. 19 of 38.]
2. Appeals submitted by third-party inmates as to Verduzco and Ortega and the Confidential Supplements thereto;
3. A summary list in chart form of inmate appeals against Correctional Officers bearing the last names Verduzco and Ortega.
A. Relevance
Under Federal Rule of Civil Procedure 26,
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible
things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.Fed. R. Civ. P. 26(b)(1). The scope of discovery under the Federal Rules is extremely broad. See, e.g., Kelly v. City of San Jose, 114 F.R.D. 653, 668 (N.D. Cal. 1987). The party opposing discovery bears the burden of resisting disclosure. Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D. Cal. 1992).
B. Official Information Privilege - Log Numbers 1 - 3
Federal common law recognizes a qualified privilege for official information. Kerr v. United States Dist. Ct. for the Northern Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975). The discoverability of official documents is determined under the "balancing approach that is moderately pre-weighted in favor of disclosure." Kelly, 114 F.R.D. at 661. The party asserting the privilege must properly invoke the privilege by making a "substantial threshold showing." Id. at 669. The party must file an objection and submit a declaration or affidavit from a responsible official with personal knowledge of the matters attested to in the affidavit. Id. The affidavit must include: (1) an affirmation that the agency has generated or collected all of the subject material and that it has maintained its confidentiality; (2) a statement that the official has personally reviewed the material in question; (3) a specific identification of the governmental or privacy interests that would be threatened by disclosure of the material to the plaintiff and/or his or her attorney; (4) a description of how disclosure subject to a carefully crafted protective order would create a substantial risk of harm to significant governmental or privacy interests; and (5) a projection of how much harm would be done to the threatened interest or interests if disclosure were made. Id. at 670.
Defendants submitted a declaration executed by P. Nava, the Appeals Coordinator at Calipatria State Prison, who is familiar with CDCR's inmate appeals process and the processing of inmate appeals at that institution, and who has reviewed the documents that are the subject of Plaintiff's motion. [Doc. No. 68-1, pp. 31-36, Nava Decl.¶ 2-4.] Nava states these documents were collected and maintained confidentially by CDCR, and identifies the governmental and privacy interests that would be threatened by disclosure to Plaintiff. [Id. ¶ 3-4.] He also outlines the potential for harm that could be caused as a result of the documents' disclosure. Nava does not explain, however, how disclosure of any of the documents subject to a carefully crafted protective order would create a substantial risk of harm to these governmental or privacy interests. As the party asserting the privilege, Defendants must properly invoke the privilege by making a "substantial threshold showing," which they have not done Kelly, 114 F.R.D. 653, 669. The documents identified as Log numbers 1, 2 and 3 are accordingly not protected from production due to the official information privilege.
Plaintiff states he needs these documents to show Defendants were aware Plaintiff had made prior complaints against them before the incident that is the subject of this litigation. [Doc. No. 60, p. 2 of 17.] Defendants argue the documents identified in Log number 1, the confidential supplements to the inquiries arising from Plaintiff's appeals against Verduzco and Ortega, are not relevant to the defenses asserted in their pending motion for summary judgment. [Doc. No. 68, pp. 14-15 of 17.] Defendants claim that because they only deny recalling whether they had been informed of prior complaints, as opposed to denying whether they were actually told of prior complaints, these documents are not relevant. [Doc. No. 68, p. 14 of 17.]
Plaintiff alleges Defendants engaged in a pattern of behavior that was harassing to Plaintiff and his visitor, Ms. Jackson. [Doc. No. 5, pp. 34 or 43.] Plaintiff and Ms. Jackson made several complaints about Defendants. [Id.] Plaintiff claims thereafter, when Ms. Jackson visited Plaintiff on January 8, 2011, Defendants terminated Ms. Jackson's visit without cause and utilized excessive force against Plaintiff in retaliation for the prior complaints. [Id.] Thus, records regarding Plaintiff's complaints made prior to and regarding the incident on January 8, 2011, are clearly relevant to the claims made by Plaintiff in this litigation.
C. Privacy Interests - Log Numbers 2 & 3
Defendants also assert third party privacy interests as their basis for withholding the documents identified as Log numbers 2 and 3. [Doc. No. 68-1, pp. 9-10 and p.19.] Log number 2 consists of administrative grievances that were submitted by third party inmates. Log number 3 is a summary in chart form that includes a list of inmate appeals, by both third party inmates and Plaintiff, against correctional officers bearing the surnames Verduzco and Ortega. Because, as explained above, Defendants have not properly invoked the official information privilege for these documents, the Court will turn its attention to the asserted third party privacy interests.
Under federal law, the resolution of a privacy objection involves a balancing of the need for the information sought against the privacy right asserted. Soto, 162 F.R.D. at 616 (citing Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1447 (11th Cir. 1984)). "In the context of the disclosure of police files, courts have recognized that privacy rights are not inconsequential." Soto, 162 F.R.D. at 616. "Federal courts should generally give some weight to privacy rights that are protected by state constitutions or state statutes." Kelly, 114 F.R.D. at 656. "However, these privacy interests must be balanced against the great weight afforded to federal law in civil rights cases against police departments." Soto, 162 F.R.D. at 616.
Inmate complaints against staff are maintained confidentially by the CDCR. [Doc. No. 68-1,Nava Decl. ¶ 6.] The documents identified in Log Number 2 are complaints made by six individuals who are not parties to this litigation. Log Number 3 is a summary in chart form of inmate complaints. These inmates retain a privacy interest in their grievances and would reasonably have an expectation their complaints would not be shared with other inmates. [Id.] Because inmates' names and files are protected by § 3370 of the California Code of Regulations, the third party inmates whose records are disclosed to Plaintiff would have to be informed of the disclosure, even if their names and CDCR numbers were redacted from the grievances. [Id. ¶ 8.] The release of this information to Plaintiff could, therefore, jeopardize his own safety, the safety of the third party inmates whose grievances are released, and staff members who may be perceived as being responsible for the perceived breach in the security of the complaints. [Id. ¶¶ 6 & 8.]
Log Number 3 also lists inmate complaints made as to other correctional officers bearing the same last name as Defendant Ortega, which are not relevant to the claims made by Plaintiff in this action.
The Court must balance these serious privacy concerns against Plaintiff's stated need for these documents. Plaintiff requests these documents so he can obtain "evidence of the defendants' prior or subsequent acts to show motive (hostility to prisoners) and intent (to harm prisoners who are outspoken)...." [Doc. No. 60, p. 2.]
The Court has reviewed in camera the documents identified in Log numbers 2 and 3. Based on the Court's in camera review, the undersigned magistrate judge finds these documents are not relevant to Plaintiff's stated need or the claims in this action. Production of these documents is also not reasonably calculated to lead to the discovery of admissible evidence in this case. The third party privacy interests in these documents, therefore, outweigh Plaintiff's need for the information contained therein.
The discovery phase of this litigation ended on December 6, 2013. The Court has previously ordered no discovery is permitted after this deadline. [Doc. No. 48.]
--------
D. Protective Order
Pursuant to the terms of this Order, CDCR will release to Plaintiff identified in Log number 1 (hereinafter the "Materials") by no later than March 18, 2014. Due to their sensitive and confidential nature, any Materials produced pursuant to this Order shall be used by Plaintiff and Defendants solely in connection with the case of Sinegal v. Duarte, Case No. 11-CV-2534-BEN(JMA), and not for any other purpose, including any other litigation.
Plaintiff is strictly prohibited from disclosing (including copying, sharing, or discussing) the Materials or their contents under any circumstances with any inmate. Furthermore, Plaintiff is strictly prohibited from disclosing (including copying, sharing, or discussing) the Materials or their contents to any person for any purpose, except to Defendants' counsel of record, the Court, and necessary prison staff, for use only in connection with this action. Notwithstanding these restrictions, Plaintiff may discuss the contents of the Materials with potential witnesses; however, he may do so only as it relates to this litigation.
Plaintiff is strictly prohibited from copying the Materials or their contents, except as required to attach to court filings. Plaintiff and Defendants must endeavor to protect the confidentiality of the Materials consistent with this Protective Order. If Plaintiff attaches the Materials to a court filing, he must simultaneously file a Motion to File Confidential Documents Under Seal, in which he clearly and specifically identifies the Materials and requests they be filed under seal.
At the conclusion of this matter, whether through trial, appeal, collateral review, or other final disposition, all Materials, and all copies, shall be returned to the Defendants' counsel of record.
E. Conclusion
Based on the foregoing, Plaintff's Motion to Compel is GRANTED IN PART and DENIED IN PART. Pursuant to the terms of this Order, CDCR will release to Plaintiff the documents identified in Log number 1 by no later than March 18, 2014.
IT IS SO ORDERED.
__________
Jan M. Adler
U.S. Magistrate Judge