Walker v. Ryan et al

Filing 125

ORDER granting in part and denying in part 110 Plaintiff's Motion to Compel, see PDF document for details. Signed by Magistrate Judge Lawrence O Anderson on 5/7/12.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sheldon Walker,

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Plaintiff,
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vs.
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Charles L. Ryan, et al.,
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Defendants.
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No. CV-10-1408-PHX-JWS (LOA)
ORDER

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This matter is before the Court on Plaintiff’s Motion to Compel. (Doc. 110) Defen15

dants Dunn and Ryan, the only remaining defendants in this matter, oppose Plaintiff’s motion.
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(Doc. 117) Plaintiff has filed a reply in support of his motion to compel. (Doc. 122) As
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discussed below, the motion will be granted in part and denied in part.
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I. Background
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Plaintiff brought this civil rights action under 42 U.S.C. § 1983 against multiple
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Arizona Department of Corrections’ (“ADC”) officials. (Doc. 41) Plaintiff’s claims relate to
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his confinement in the Arizona State Prison Complex-Eyman, Browning Unit, a maximum
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security unit, where he remains housed. (Id.) In his Second Amended Complaint, Plaintiff
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named eight Defendants: Charles Ryan, Alfred-Ramos, Laurie Barrett, Correctional Officer
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Caldwell, Captain Smith-Whitson, Jerry Dunn, Paul Swaney, and Hearing Officer Swanson.
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The Court has previously dismissed Defendants Ramos, Barrett, Caldwell, Smith-Whitson,
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Swaney, and Swanson and several counts of the Second Amended Complaint. (Docs. 109, 111)
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Thus, the only remaining claims are Plaintiff’s allegations against Defendants Ryan and Dunn
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in Counts I and III of the Second Amended Complaint. (Id.)

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In Count I, Plaintiff alleges that Defendants Ryan and Dunn violated his Fourteenth

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Amendment procedural due process rights by indefinitely confining him in “supermax

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confinement” as a validated member of the Mau Mau Security Threat Group (“STG”). (Doc.

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41 at pp. 3-3B) Specifically, Plaintiff alleges that Defendants have no process in place that

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permits an inmate like Plaintiff to challenge ADC’s continued certification of the Mau Mau as

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an STG. (Id., ¶ 12 at 3B) Plaintiff indicates that he was informed in 2005, 2006, and 2007-

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2009, that the ADC was in discussions to decertify the Mau Mau STG. (Id., ¶ 8) In Count III,

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Plaintiff claims that the standard set forth in the 2006 revised Department Order (“DO”) 806

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policy - which Plaintiff states provides more “safeguards” against ongoing confinement absent

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sufficient evidence - has not been applied to him but has been applied to other similarly situated

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prisoners in supermax in violation of the Equal Protection Clause. (Doc. 41, ¶ 1 at 11 of 23)

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Plaintiff alleges that, at his 2008 and 2009 annual reviews, he was intentionally treated

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differently from similarly situated individuals in supermax without a rational basis. (???)

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In August 2011, Plaintiff served discovery requests on Defendants, to which

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Defendants responded in December, 2011, and January 11, 2012. (Docs. 68, 70, 100, 103) In

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January, 2012, Plaintiff sent two letters to defense counsel regarding his discovery disputes.

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(Doc. 110 at 19-25; doc. 117, Exh. A) On January 26, 2012, Plaintiff requested a conference

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call with defense counsel to discuss discovery disputes before filing a motion to compel.

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Defense counsel explains that, because he anticipated a large portion of the discovery would

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become moot once the Court ruled on the motions to dismiss, he advised Plaintiff that he would

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not oppose a motion to extend the discovery dispute deadline while the parties awaited the

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rulings on the motions to dismiss. Thereafter, in March of 2012, the Court dismissed six

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defendants and four counts of the Second Amended Complaint. The Court will consider

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Plaintiff’s motion to compel in the context of the remaining claims.

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II. Legal Standard

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Federal Rule of Civil Procedure 26 provides that “[p]arties may obtain discovery
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regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . Relevant

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information need not be admissible at the trial if the discovery appears reasonably calculated

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to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). The Court may limit

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discovery requests when “the burden or expense of the proposed discovery outweighs its likely

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benefit.” Fed.R.Civ.P. 26(b)(2)(C)(iii). “Broad discretion is vested in the trial court to permit

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or deny discovery, and its decision to deny discovery will not be disturbed except upon the

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clearest showing that denial of discovery results in actual and substantial prejudice to the

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complaining litigant.” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citing Goehring

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v. Brophy, 94 F.3d 1294, 1305 (9th Cir. 1996)).

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III. Analysis
A. Meet and Confer Requirement

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Prior to filing a motion to compel, a parties must confer in “good faith.” Fed.R.Civ.P.

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37(a); LRCiv 7.2(j). Specifically, Federal Rule of Civil Procedure 37(a)(1) provides that a

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motion to compel “must include a certification that the movant has in good faith conferred or

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attempted to confer with the person or party failing to make disclosure or discovery in an effort

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to obtain it without court action.” Fed.R.Civ.P. 37(a)(1). The Local Rules reiterate this

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requirement and provide that “[a]ny discovery motion brought before the Court without prior

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personal consultation with the other party and a sincere effort to resolve the matter, may result

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in sanctions.” LRCiv 7.2(j). These rules mandate an unrepresented party or attorney attach a

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certification that “after personal consultation and sincere efforts to do so,” the party or counsel

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have been unable to satisfactorily resolve the matter. Hart v. Agnos, 2008 WL 2008966, *7

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(D.Ariz. 2008); IMA North American, Inc. V. Marlyn Nutraceutical, Inc., 2007 WL 2391009,

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* 1 n. 1 (D.Ariz. 2007).

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Defendants assert that Plaintiff failed to confer with defense counsel regarding

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Dunn’s interrogatory No. 14 and Dunn’s request for admission No. 5. (Doc. 117 at 3)

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(citing doc. 110 at 25, Exh. A) Plaintiff does not dispute this assertion in his Reply. (Doc.

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122) Defendants contend that Rule 37 and LRCiv 7.2(j) bar Plaintiff from addressing these

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discovery requests in a motion to compel. The Court agrees and will deny the motion to

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compel as to Dunn’s interrogatory No. 14 and Dunn’s request for admission No. 5.

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B. Discovery Directed at Dismissed Defendants and Claims
As previously stated, the only remaining claims in this case are allegations against

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Defendants Ryan and Dunn in Counts I and III of the Second Amended Complaint. Thus,

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the discovery requests directed to Defendants Barrett, Caldwell, Smith-Whitson, Swaney,

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Swanson and those pertaining to Counts II, IV, V, and VI are irrelevant because the Court

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has dismissed these Defendants and claims. Fed.R.Civ.P. 26(b)(1); Oppenheimer v. Sanders,

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437 U.S. 340, 351-52 (1978) (stating that it is proper to deny discovery of a matter that is

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relevant only to claims or defenses that are no longer part of the lawsuit.). In apparent agree-

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ment with this principle, Plaintiff limits the reply in support of his motion to compel to a

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discussion of the discovery directed to Defendants Ryan and Dunn. (Doc. 122) Because

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Defendants Barrett, Caldwell, Smith-Whitson, Swaney, and Swanson are no longer part of

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this lawsuit, the Court will deny the motion to compel as to discovery requests pertaining to

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these defendants.

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Defendants further argue that Interrogatory No. 16 and Request for Admission No.

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5 directed to Defendant Ryan, and Interrogatories Nos. 11 and 15, and Request for

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Admission No. 4 directed to Defendant Dunn should be dismissed because they pertain to

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the dismissed claims. (Doc. 117 at 4) Plaintiff’s Reply does not address Ryan Interrogatory

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No. 16, and, thus, he appears to agree that this Interrogatory is no longer relevant. The

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Court, therefore, will deny the motion to compel as to Ryan Interrogatory No. 16. Plaintiff,

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however, argues that the remaining discovery requests directed to Ryan and Dunn are

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relevant. The Court will address these discovery requests below.

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C. Discovery Requests Directed to Defendant Ryan
Plaintiff objects to Defendant Ryan’s responses to Interrogatories Nos. 1, 3, 4, 5,
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Ryan Interrogatory No. 1
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This interrogatory provides: “Please explain in as much detail as possible the

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process that takes place during the annual certification review (D.O. 806.01 1.4, 1.4.1, 1.4.2)

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such as who is the STG Unit who makes the annual recommendation, who make up the STG

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Appeal Committee, procedures followed during annual review, and the criteria that must be

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met for an STG or member to no longer be certified.” (Doc. 110 at 27) Defendant Ryan

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objected to this interrogatory as vague and ambiguous because Plaintiff did not provide an

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effective date of the STG policy, D.O. 806, to which this interrogatory pertains. (Docs. 110

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at 27-28; 117 at 5) Defendant Ryan states that during the period relevant to Plaintiff’s

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claims, 2008 to 2010, four versions of the STG policy were in effect. (Doc. 117 at 5)

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Defendant Ryan states that Plaintiff did not clarify the date of the policy in his discovery

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letter, but asserted that Defendant Ryan is “responsible for those policies and practices

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implemented since he has been acting and permanent director.” (Doc. 110 at 23) Defendant

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states that Plaintiff’s letter did nothing to clarify the ambiguity in Interrogatory No. 1.

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Defendant Ryan further objected to Interrogatory No. 1 on the ground that

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revealing the requested information would jeopardize institutional safety and security. (Doc.

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117 at 5) Defendant Ryan contends that “details about how prison gang members are

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identified and how gang intelligence is analyzed and collected is information that must be

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kept of out of the hands of STG members and inmates in general.” (Id. at 5-6) Defendant

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Ryan, however, responded to Interrogatory No. 1 by informing Plaintiff that the annual

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recertification review process is contained in D.O. 806. (Id. at 6)

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The Court finds that Defendant Ryan has sufficiently responded to Interrogatory

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No. 1. In view of legitimate security concerns, as recognized by the Ninth Circuit in U.S. v.

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Williams, 791 F.2d 1383, 1387 (9th Cir. 1986) (affirming denial of discovery request related

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to prison security methods because plaintiff could not overcome government’s interest in

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inmate safety and prison security), the Court will not compel Defendant Ryan to provide a

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further response.

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Ryan Interrogatory No. 3
Interrogatory No. 3 states, “Please describe the type of incidents that are alleged to

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have occurred over the last 5 years, listed by year and month, that were used in the annual

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review of the continue certification of the Mau Mau and its members.” (Doc. 110 at 28)

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Defendant Ryan objected to this request as overbroad, irrelevant, and on the ground that

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disclosure of this information would jeopardize institutional safety.

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Defendant specifically objects that this request as irrelevant because the continued

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certification of the Mau Mau as an STG has no effect on Plaintiff’s continued status as a

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validated STG member. (Doc. 117 at 6, Exh. B) Defendant Ryan explains that pursuant to

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D.O. 806, effective November 5, 2009 and revised March 1, 2011, decertification of an STG

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does not automatically reverse an inmate’s validated status as a member of the decertified

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STG. (Id., Exh. C - § 806.01, subsection 1.5) Defendant further states that, even if the Mau

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Mau were decertified, returning previously validated members of that STG to the general

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population would potentially rekindle that group. (Id. at 6, Exh. B) The Court finds that

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Plaintiff’s Interrogatory No. 3 is irrelevant. If decertification of the Mau Mau would not

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effect Plaintiff’s status, information pertaining to the continued certification of the Mau Mau

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as an STG is not relevant to Plaintiff’s claims. Accordingly, the Court will deny Plaintiff’s

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motion to compel as to Ryan Interrogatory No. 3.

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Ryan Interrogatory No. 4
This interrogatory asks, “[h]ow many inmates were validated as a result of the

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incidents (refer to answer to Interrogatory No. 3) as STG Mau Mau members?” (Doc. 110 at

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28) Defendant Ryan objects to this request as overbroad and irrelevant. Defendant explains

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that recertification of the Mau Mau as an STG is not based on the number of inmates

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validated as members. Rather, it is based on ongoing or current gang activity since the last

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annual review. (Doc. 117 at 7) (citing D.O. 806, § 806.01, subsection 1.4 et seq.) Because

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the number of inmates validated as STG members is not part of the recertification decision,

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that information is irrelevant to Plaintiff’s claims and need not be disclosed.

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Ryan Interrogatory No. 17
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This interrogatory asks Defendant Ryan to explain if he is aware that long-term

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confinement in supermax is believed to cause mental health issues or other illness. (Doc.

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110 at 29) It specifically indicated “the Interrogatory is not asking whether the Defendant

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believe (sic) or know (sic) it to be true only if he is aware this is believed.” Defendant Ryan

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responded that he is aware that ADC inmates, including Plaintiff, believe that supermax

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confinement causes physical and mental problems. (Id.) In response to Plaintiff’s motion to

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compel a further response, Defendant Ryan states that he does not have a more specific

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recollection regarding his awareness of inmates’ beliefs that long-term confinement in

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supermax is detrimental to their health. Because the interrogatory is not clear what Plaintiff

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is asking, the Court finds that Defendant Ryan has sufficiently responded to Interrogatory

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No. 17 and will deny the motion to compel as to this request.

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Ryan Interrogatory No. 23
Interrogatory No. 23 asks, “what are the specific criteria an (sic) STG or member

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must meet in order for you to decide to decertify the group or member.” (Doc. 110 at 30-31)

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Defendant Ryan objects to this request as vague and ambiguous because Plaintiff does not

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specify the effective date of the STG policy to which his interrogatory pertains. Defendant

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Ryan also asserts that revealing this information would compromise institutional safety and

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security. In his Reply, Plaintiff refers to his arguments related to Interrogatories Nos. 1 and

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3. (Doc. 122 at 5) Because the Court has denied the motion to compel as to Interrogatories

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Nos. 1 and 3, it will deny the motion as to Interrogatory No. 23 for the same reasons.

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Ryan Request for Admission No. 5

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Request for Admission No. 5 states “[w]hen you approved the change to D.O. 806

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November 5, 2009, Inmate Walker was not allowed to have D.O. 806.02 1.1.3.6. applied to

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the evidence used at his validation hearing.” (Doc. 110 at 34) Defendant contends that this

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request for admission is irrelevant because all but Counts I and III have been dismissed from

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this case. Defendant contends that this request applies to Plaintiff’s claim pertaining to his

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validation in 1999 which was dismissed. (Doc. 117 at 9; citing Doc. 109)

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The Court disagrees with Defendant because the request is relevant to Plaintiff’s
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claim in Count III that the standard set forth in the 2006 revised D.O. 806 policy - which he

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states provides more “safeguards” against ongoing confinement absent sufficient evidence -

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is not applied to him but it is applied to other similarly situated prisoners in supermax in

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violation of the Equal Protection Clause. (Doc. 41 at 5) In his Second Amended Complaint,

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Plaintiff alleges that, at his 2008 and 2009 annual reviews, he was intentionally treated

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differently from similarly situated individuals in supermax without a rational basis.

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Plaintiff’s request for admission No. 5 asks whether D.O. 806, as revised in November 5,

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2009, was applied to Movant’s “validation hearing.” Although Plaintiff uses the word

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“validation”, reading the entire sentence and applying common sense, it is apparent that

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Plaintiff is referring to his annual review in 2009, after D.O. 806 was revised, and not to his

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initial validation in 1999 as Defendant Ryan claims. Thus, the Court overrules Defendant

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Ryan’s objection and will direct him to respond directly to Request for Admission No. 5.

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Ryan Request for Admission No. 6
Request for Admission No. 6 states, “D.O. 806.02 1.1.3.6 was not changed until

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after Inmate Walker filed a civil complaint in regards to D.O. 806.02 1.1.3.6 not being

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applied to his confinement in Browning Unit.” (Doc. 110 at 34) Defendant Ryan responds

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that D.O. 806 was revised on November 15, 2009 and March 1, 2011. The Court finds that

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Defendant Ryan sufficiently responded to Request for Admission No. 6 by providing the

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date on which the policy at issue was changed, and Plaintiff certainly knows that date on

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which he filed the pending lawsuit.

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Ryan Request for Admission No. 7
Request for Admission No. 7 states, “You have the authority to have D.O. 806.01

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1.1.3.6 applied to inmate Walker’s evidence that [is] used to support his confinement in

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Browning Unit as it was written November 5, 2009.” (Doc. 110 at 34) Defendant Ryan

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explains that he cannot respond to the request because evidence of current STG activity

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cannot be addressed at the annual review of an inmate’s STG validation. Defendant explains

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that evidence is not presented at an annual STG review. Upon review of this request in light

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of Plaintiff’s claims, it seems that Defendant Ryan is applying a hyper-technical, evasive
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meaning to the word “evidence” as used in Plaintiff’s request for admission. The essence of

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Plaintiff’s request is whether Defendants Ryan has the authority to have D.O. 806.01 1.1.3.

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6, as revised on November 5, 2009, applied to the annual reviews of Plaintiff’s STG

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classification. Thus, the Court will direct Defendant Ryan to answer directly Plaintiff's

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Request for Admission No. 7.

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D. Discovery Requests to Defendant Dunn

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Dunn’s Interrogatory No. 1
Interrogatory No. 1 seeks information regarding the identity of the STG Appeals

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Committee members and the process of annual recertification of STGs. (Doc. 110 at 36)

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Defendant Dunn objects to this request as overbroad for failing to specify a time frame.

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Defendant explains that the STG members differ based on the relevant time period.

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Defendant stated that the recertification process is contained in D.O. 806, § 806.01. In an

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effort to narrow his request, Plaintiff states that the interrogatory is limited to annual reviews

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in which Defendant Dunn participated. (Doc. 110 at 6) Defendant claims that this

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qualification still fails to narrow the time frame of Plaintiff’s request. Plaintiff’s Second

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Amended Complaint specifically pertains to his annual reviews in 2008 and 2009. Thus,

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Defendant Dunn’s objection is overruled and Defendant is directed to respond directly to

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Plaintiff’s Interrogatory No. 1 limited to the years 2008 and 2009, and to the annual reviews

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in which Defendant Dunn participated.

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Dunn’s Interrogatory No. 3
Plaintiff seeks the dates of the annual reviews for the recertification of the Mau

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Mau STG for the last five years. (Doc. 110 at 37) Defendant opposes this request as

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irrelevant and not likely to lead to the discovery of admissible evidence. Plaintiff’s claims

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pertain to the continued certification of the Mau Mau as an STG and his continued

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confinement in supermax as a member of that STG. Thus, the Court finds the information

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requested relevant to Plaintiff’s claims, Defendant’s objection is overruled, and the Courts

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directs Defendant Dunn to respond directly to Interrogatory No. 3 for the years 2008 to

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2012.
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Dunn’s Interrogatory Nos. 6 and 7
Interrogatory number 6 asks whether the STG Appeals Committee has recom-

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mended the decertification of any STG in the last five years. Interrogatory number 7 asks, if

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yes, how many times and which STG. Defendant objects to this request for several reasons,

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most significantly, that releasing this information would compromise prison safety and

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security because it pertains to recommendations, not final decisions, regarding the annual

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recertification review process for STGs. Defendant Dunn explains that such information

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would encourage inmates to take extra measures to hide STG activity if they were aware of

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possible decertification of their STG. Defendant states that, while ADC provides notifi-

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cation of a final determination of STG certification, it does not provide notice of internal or

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informal recommendations to decertify STGs. The Court finds that Defendant Dunn has

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provided a sufficient and legitimate objection to Interrogatories Nos. 6 and 7 and will deny

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the motion to compel those answers to interrogatories.

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Dunn’s Interrogatory No. 11
The Court will deny the motion to compel this interrogatory answer because it
pertains to a claim that was dismissed. (See doc. 109 at 12, 15)
Dunn’s Interrogatory No. 19

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This interrogatory seeks five years of “incidents,” broken down by month and

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year,

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used to continue the certification of the Mau Mau. (Doc. 110 at 40) Defendant objects to

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this request for security and safety reasons. In view of legitimate security concerns, as

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recognized by the Ninth Circuit in Williams, 791 F.2d at 1387 (affirming denial of discovery

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request related to prison security methods because plaintiff could not overcome govern-

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ment’s interest in inmate safety and prison security), the Court will not compel Defendant

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Dunn to provide a further response.

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Dunn’s Request for Admission No. 4
The Court will deny the motion to compel regarding this request because it
pertains to a claim that was dismissed. (See doc. 109)
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As set forth above,

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IT IS ORDERED that Plaintiff’s Motion to Compel, doc. 110 is GRANTED only

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to the extent that:
1. On or before Friday, May 18, 2012, Defendant Ryan must respond directly to
Plaintiff’s Requests for Admissions Nos. 5 and 7; and
2. On or before Friday, May 18, 2012, Defendant Dunn must respond to

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Plaintiff’s Interrogatory No. 1, limited by this order to the years 2008 and 2009 and to the

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annual reviews in which Defendant Dunn participated; and Interrogatory No. 3.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel, doc. 110, is
DENIED in all other respects.
Dated this 7th day of May, 2012.

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