Kinney v. Brazelton, et al.

Filing 112

ORDER REGARDING Objections to Magistrate Judge's Discovery Order signed by District Judge Anthony W. Ishii on 3/1/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DIJON KINNEY,

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Plaintiff,

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CASE NO. 1:14-cv-00503-AWI-MJS (PC)

v.
P.D. BRAZELTON, et al.,

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ORDER REGARDING OBJECTIONS TO
MAGISTRATE JUDGE’S DISCOVERY
ORDER
(ECF No. 102)

Defendants.

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Plaintiff is a state prisoner proceeding in forma pauperis and with counsel in this

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civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against

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Defendant Flores on Plaintiff’s Eighth Amendment claims for inadequate medical care

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and cruel and unusual punishment. The matter is before the Court on objections to the

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Magistrate Judge’s order requiring Defendant to produce certain documents to Plaintiff

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subject to a protective order.

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I.

Procedural History

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On May 27, 2016, the Magistrate Judge ordered Defendant to submit specified

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documents for in camera review. (ECF No. 56.) Defendant filed objections to the order

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(ECF No. 62), which were overruled (ECF No. 71). Defendant ultimately submitted the

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specified documents for in camera review along with a statement of objections to the

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release of said documents to Plaintiff, a privilege log, and a proposed protective order.

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(ECF Nos. 92- 93.)

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Following a January 13, 2017 conference, the Magistrate Judge ordered that

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some of the materials submitted in camera be produced to Plaintiff’s counsel pursuant to

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a protective order. (ECF No. 97.) The Court specified limited permissible redactions to

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those materials. Defendant sought additional redactions. (ECF Nos. 101 and 110.) The

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requests were granted in part. (ECF Nos. 109 and 111.).

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Defendant also filed the instant objections to those portions of the order requiring

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him to release privileged documents to Plaintiff.1 (ECF No. 102.) Plaintiff filed a

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response. (ECF No. 108.) Defendant filed no reply.

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The Magistrate Judge stayed the order pending review by the undersigned. (ECF

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No. 105.)

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II.

Legal Standard

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Federal Rule of Civil Procedure 72(a) allows parties to file objections to

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nondispositive orders decided by a Magistrate Judge. “The district judge in the case

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must consider timely objections and modify or set aside any part of the order that is

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clearly erroneous or is contrary to law.” Id.

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Similarly, Local Rule 303(c) allows parties to seek reconsideration by a District

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Judge of a Magistrate Judge’s pretrial rulings. Local Rule 303(c). The assigned District

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Judge shall review all such requests for reconsideration under the "clearly erroneous or

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contrary to law" standard set forth in 28 U.S.C. § 636(b)(1)(A). Local Rule 303(f) (citing

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Fed. R. Civ. P. 72(a)).

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III.

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Discussion
A.

Factual Background

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Defendant has no objection to releasing to Plaintiff non-privileged material identified in the order. (ECF
No. 102 at 1.)

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Plaintiff’s claims stem from an August 14, 2012 incident at Pleasant Valley State

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Prison. On that date, a riot broke out between rival gangs of Hispanic inmates. Plaintiff

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was not involved. Inmates on the yard, including Plaintiff, were ordered to “get down.”

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Plaintiff was among a group of African American inmates on the yard basketball

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court that did not comply with the prone out order. According to Plaintiff, the ground was

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burning hot. Defendant eventually ordered Plaintiff to crawl backwards on the basketball

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court and Plaintiff then was restrained. Defendant removed Plaintiff from the basketball

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court and took him to another area, where Plaintiff claims he was forced to kneel on hot

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pavement. Plaintiff alleges that he was burned as a result, and that he was then denied

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medical treatment. He attributes both the burns and the lack of medical treatment to the

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conduct of Defendant Flores.

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The instant discovery dispute involves an Office of Internal Affairs (“OIA”)
Investigative Report of the incident at issue, as well as Exhibits attached thereto.
Legal Standard – Official Information Privilege

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B.

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The Supreme Court has long noted that privileges are disfavored. Jaffee v.

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Redmond, 518 U.S. 1, 9 (1996). “The party asserting an evidentiary privilege has the

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burden to demonstrate that the privilege applies to the information in question.” Tornay

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v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988). Privileges are to be “strictly

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construed” because they “impede full and free discovery of the truth.” Eureka Fin. Corp.

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v. Hartford Acc. and Indem. Co., 136 F.R.D. 179, 183 (E.D. Cal. 1991). “If the privilege is

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worth protecting, a litigant must be prepared to expend some time to justify the assertion

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of the privilege.” Id.

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In civil rights cases brought under section 1983, questions of privilege are

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resolved by federal law. Kerr v. U.S. District Court for the Northern District of California,

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511 F.2d 192, 197 (9th Cir. 1975). “State privilege doctrine, whether derived from

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statutes or court decisions, is not binding on federal courts in these kinds of cases.” Kelly

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v. City of San Jose, 114 F.R.D. 653, 655-56 (N.D. Cal. 1987).

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Nevertheless, “[f]ederal common law recognizes a qualified privilege for official

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information.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (citing

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Kerr, 511 F.2d at 198). The official information privilege ensures disclosure of

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discoverable information without compromising the state’s interest in protecting the

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privacy of law enforcement officials and in ensuring the efficacy of its law enforcement

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system. Kelly, 114 F.R.D. at 662-63.

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“To determine whether the information sought is privileged, courts must weigh the

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potential benefits of disclosure against the potential disadvantages. If the latter is

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greater, the privilege bars discovery.” Sanchez, 936 F.2d at 1033-34. “In the context of

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civil rights suits against [corrections officials], this balancing approach should be

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‘moderately pre-weighted in favor of disclosure.’” Soto v. City of Concord, 162 F.R.D.

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603, 613 (N.D. Cal. 1995), (quoting Kelly, 114 F.R.D. at 661).

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The party invoking the privilege must at the outset make a “substantial threshold

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showing” by way of a declaration or affidavit from a responsible official with personal

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knowledge of the matters attested. Soto, 162 F.R.D. at 613. “The claiming official must

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‘have seen and considered the contents of the documents and himself have formed the

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view that on grounds of public interest they ought not to be produced’ and state with

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specificity the rationale of the claimed privilege.” Kerr, 511 F.2d at 198 (citation omitted).

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The affidavit must include: (1) an affirmation that the agency generated or collected the

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material in issue and has maintained its confidentiality; (2) a statement that the official

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has personally reviewed the material in question; (3) a specific identification of the

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governmental or privacy interests that would be threatened by disclosure of the material

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to plaintiff and/or his lawyer; (4) a description of how disclosure subject to a carefully

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crafted protective order would create a substantial risk of harm to significant

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governmental or privacy interests, and (5) a projection of how much harm would be done

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to the threatened interests if disclosure were made. Soto, 162 F.R.D. at 613. In addition,

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“[t]he asserting party, as in any case where a privilege is claimed, must sufficiently

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identify the documents so as to afford the requesting party an opportunity to challenge

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the assertion of privilege.” Miller v. Panucci, 141 F.R.D. 292, 300 (C.D. Cal. 1992).

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C.

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Defendant objects to the Magistrate Judge’s order requiring him to produce the

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following materials: the OIA Investigative Report; medical reports of injury for other

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inmates (Exhibit 4); health care services request forms for other inmates (Exhibit 5);

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internal memoranda (Exhibits 6-12); email string (Exhibit 13); other inmates’ staff

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complaints and investigative materials (Exhibit 16); surveillance video footage (Exhibit

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17); photographs of other inmates’ injuries (Exhibit 20); and the audio recording of

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Defendant and associated schematic (Exhibit 63 and 66).

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Defendant does not argue that the Magistrate Judge applied the incorrect law in

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evaluating Defendant’s claim of privilege. Indeed, it is plain that the Magistrate Judge

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applied the same legal standard advocated for by Defendant. Defendant merely argues

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that, in applying the applicable balancing test, the Magistrate Judge did not give

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sufficient weight to Defendant’s privacy and privilege concerns. The Court notes that, in

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applying the balancing test, the Magistrate Judge concluded that the records contain

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“highly relevant information bearing directly on the incident at issue and potential liability

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therefore.” In light of this relevance and the fact that the balancing test is moderately pre-

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weighted in favor of disclosure, Soto, 162 F.R.D. at 613, the Magistrate Judge concluded

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that Defendant’s privacy and security concerns, although legitimate, did not outweigh the

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benefits of disclosure. Defendant does not persuasively argue that this this conclusion is

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clearly erroneous or contrary to law. Nevertheless, the Court will consider Defendant’s

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specific arguments in turn.

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1.

Federal Rule of Evidence 403

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Defendant argues that the OIA Investigative Report, medical reports of injury for

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other inmates (Exhibit 4); health care services request forms for other inmates (Exhibit

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5); internal memoranda (Exhibits 6-12); email string (Exhibit 13); other inmates’ staff

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complaints and investigative materials (Exhibit 16); photographs of other inmates’

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injuries (Exhibit 20); and the audio recording of Defendant and associated schematic

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(Exhibit 63 and 66) are likely too prejudicial to be admitted at trial, and thus these

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materials should be protected from disclosure. According to Defendant, “[w]here it is

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likely that evidence will be excluded at trial as unfairly prejudicial . . . , it should be

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protected from disclosure in discovery.” (ECF No. 102 at 3.)

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In support of this proposition, Defendant cites Reza v. Pearce, 806 F.3d 497, 508

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(9th Cir. 2015.) In Reza, the district court granted a protective order preventing the

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plaintiff from questioning the defendant in a discrimination case about his acquaintance

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with a white supremacist. The district court concluded that such information was unlikely

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to lead to the discovery of admissible evidence and in any event would be cumulative of

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other information regarding the relationship that already was publicly available. The

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district court further concluded that the information had l ittle to no probative value and

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likely would be excluded under Federal Rule of Evidence 403. The Ninth Circuit held that

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the decision to grant a protective order in these circumstances did not constitute an

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abuse of discretion.

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Reza differs markedly from the instant case. There, the only potential relevance of

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the line of questioning was to make is “slightly more likely that defendant himself was

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racist.” Reza v. Pierce, No. CV 11–01170–PHX–FJM, 2012 WL 3108814 (D. Ariz. July

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31, 2012). However, “[e]vidence that connects defendant to a Neo–Nazi murderer would

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almost certainly inflame the jury, causing prejudice that would substantially outweigh its

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minimal probity.” Id. Here, the evidence at issue directly describes the events underlying

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Plaintiff’s complaint, and in many instances contains first-hand accounts of those events.

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Defendant’s view that the evidence is not relevant because it relates to individuals who

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are not parties to the action is unnecessarily limited. Moreover, the evidence itself is not

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inflammatory. At most, it may have some minimal potential to distract the jury, or to be

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cumulative of other evidence. Furthermore, even if the evidence ultimately is

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inadmissible, it has the potential to lead to the discovery of admissible evidence. This,

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rather than the potential for prejudice, is the benchmark for whether the evidence is

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discoverable. Fed. R. Civ. P. 26(b)(1). Reza is not to the contrary.

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With regard to Defendant’s more specific concerns, the Court concludes as

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follows. Defendant argues that the OIA investigative report should not be disclosed

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because it will create the danger that the jury will base its decision on the report or the

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actions of non-parties, rather than the conduct of Defendant. Again, the Court is not

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called upon to decide admissibility at this stage of the proceedings.

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Defendant argues that evidence of an internal investigation could confuse the jury

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because violations of policy or regulations are insufficient to establish a constitutional

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violation. As an initial matter, the report itself does not appear to contain any conclusions

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as to whether any violations took place. In any event, admissibility does not determine

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whether the materials are discoverable.

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Defendant argues that medical information of other inmates’ injuries is prejudicial

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as the jury may decide the case based on those injuries, rather than on Defendant’s

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conduct toward Plaintiff. However, to the extent that Defendant may argue that Plaintiff’s

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injuries were not caused by this incident or that Defendant was unaware of any injuries,

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the number of inmates who were similarly injured in this incident and the consistency of

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their complaints could undermine such contentions. In any event, the records may lead

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to the discovery of relevant evidence.

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Defendant argues that summaries of witness statements contained in the report

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are double hearsay and cumulative. As they are cumulative of other portions of the

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report, the Court finds no particular dangers inherent in their disclosure. Furthermore,

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that they are hearsay does not, as stated, exclude them from the scope of discovery.

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Finally, the Court notes that the Magistrate Judge apparently required Defendant to

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disclose the summaries to avoid the institutional burden, claimed by Defendant, of

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supervising Plaintiff while he listened to hours of recorded interviews. As Plaintiff has

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been granted leave to seek the full recordings upon a showing of good cause, the Court

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concludes that the summaries may lead to the discovery of relevant and admissible

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evidence.

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Finally, Defendant contends that Plaintiff does not require the OIA Report to

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identify witnesses because he was on the yard that day and knew who else was present

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and who may have been involved. This argument is without merit. There is nothing in the

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record to indicate that Plaintiff is able to identify by memory every inmate and

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correctional officer involved in this incident. Nor would he necessarily have information

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regarding what others had seen, done, or heard during the incident. Furthermore, the

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Court once again reiterates that the relevance of these nearly contemporaneous first-

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hand accounts is indisputable.

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Defendant’s objections on these grounds will be overruled.
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Video Surveillance

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Defendant argues that “safety and security concerns relating to inmates viewing

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and studying depictions of tactical responses” outweigh the relevance of the video

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surveillance footage. The footage, however, shows only the beginning of the riot and

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does not appear to show any tactical response. Furthermore, Plaintiff is no longer

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housed at the institution where the events at issue occurred and can gain no discernible

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benefit from viewing the surveillance footage. Thus, Defendant’s safety concerns are

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somewhat overstated.

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As to relevance, Defendant argued on summary judgment that Plaintiff did not

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face a serious risk of harm from being forced to kneel on hot pavement because all other

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inmates on the yard, aside from those on the basketball court, complied with the prone

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out order. Plaintiff responded that the other inmates were on grass or dirt, rather than

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pavement. The video footage supports Plaintiff’s contention. It therefore is relevant to a

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fact that is in dispute.

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Defendant’s objection on this ground will be overruled.

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3.

Retaliation

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Defendant states that Plaintiff may be subject to retaliatory attacks or

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manipulation by other inmates once they learn that Plaintiff has received some of their

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personal information. Declarations submitted by Defendant (ECF Nos. 92-1 and 92-2)

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support the general proposition that releasing investigative materials to inmates may

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result in some degree of risk to the inmate and to staff. However, the declarations do not

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identify any particular risk to Plaintiff from the other inmates who were participants in the

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OIA investigation. Indeed, it is unknown whether any of these other inmates are housed

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in the same facility as Plaintiff, or even whether they remain incarcerated. Thus, the

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concerns articulated by Defendant are too hypothetical to warrant withholding these

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materials from Plaintiff. Defendant’s objection in this regard will be overruled.

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4.

Attorney’s Eyes Only

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The Magistrate Judge ordered Defendant to submit confidential materials to the

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possession of Plaintiff’s counsel. Plaintiff’s counsel was permitted to share the materials

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and their contents with Plaintiff, but Plaintiff was prohibited from copying or retaining the

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materials in his possession and from discussing the materials or their contents with any

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other inmate.

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Defendant asks that the disclosure be limited to Plaintiff’s attorney’s eyes only. He

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suggests that there is no way to prevent Plaintiff from sharing information with other

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inmates who may use the information for their own purposes, such as subjecting staff to

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harassment, impairing staff authority and control, and exposing staff to manipulation. As

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Plaintiff’s counsel notes, such a limitation is likely to impede counsel’s preparation of the

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matter for trial. Furthermore, the Court finds that the information contained in the report

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is not so sensitive as to require an attorney’s eyes only order. Cf. Rios v. Tilton, No.

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2:07-cv-0790 KJN P, 2016 WL 2854965 (E.D. Cal. May 16, 2016) (granting attorney’s

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eyes only order where records included references to confidential informants who

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provided information used to validate inmate as a gang member). Instead, the records

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contain differing accounts of an event in which Plaintiff was a direct participant.

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Defendant’s objection in this regard will be overruled.

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IV.

Conclusion and Order

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Based on the foregoing, Defendant’s objections are HEREBY OVERRULED.

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Pursuant to the Magistrate Judge’s prior order (ECF No. 105), Defendant shall produce

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the materials at issue within three days of the date of this order.

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IT IS SO ORDERED.
Dated: March 1, 2017
SENIOR DISTRICT JUDGE

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