Caruso v. Johnson et al

Filing 79

ORDER DENYING Defendants' Request for Reconsideration by the District Court of the Magistrate Judge's Ruling Overruling Defendants' Assertion of Official Information Privilege 77 , signed by District Judge Anthony W. Ishii on 5/17/2018. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER DENYING DEFENDANTS’
REQUEST FOR RECONSIDERATION BY
THE DISTRICT COURT OF THE
MAGISTRATE JUDGE’S RULING
OVERRULING DEFENDANTS’
ASSERTION OF OFFICIAL
INFORMATION PRIVILEGE

Plaintiff,

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Case No. 1:15-cv-00780-AWI-EPG (PC)

GINA CARUSO,

v.
OFFICER G. SOLORIO, et al.,

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Defendants.

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(ECF No. 77)

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Gina Caruso (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in
this civil rights action filed pursuant to 42 U.S.C. § 1983.

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On May 11, 2018, Defendants filed a request for reconsideration by the district court

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(ECF No. 77) of the magistrate judge’s order (ECF No. 75), which overruled Defendants’

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assertion of the official information privilege as to certain documents.

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described below, Defendants’ request for reconsideration is denied.

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I.

For the reasons

BACKGROUND

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In discovery, Defendants withheld numerous documents generated in the course of the

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prison’s investigation into Plaintiff’s administrative complaints related to the search for

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contraband.

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appointment of counsel, which attached Defendants’ responses to discovery request and argued

The magistrate judge was alerted to this issue by Plaintiff’s motion for

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that she was unable to properly litigate this case because Defendants were improperly

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withholding most relevant documents as privileged.

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Defendants’ privilege log, which indicated that the entire investigation related to Plaintiff’s

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grievance at the prison was privileged pursuant to the official information privilege because it

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constituted “Confidential information that would jeopardize the safety and security of the

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institution if disclosed.” (ECF No. 57 at 19-20). The magistrate judge construed portions of

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that motion as a motion to compel and ordered in camera review of the withheld documents.

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(ECF No. 61). Defendants complied with the order.1

(ECF No. 57).

Plaintiff attached

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Following additional briefing and the magistrate judge’s review of the documents, the

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magistrate judge overruled Defendants’ objection as to certain categories of documents. The

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magistrate judge set forth the legal standards as follows:

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In Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192 (9th Cir.
1975), aff'd, 426 U.S. 394 (1976), the Ninth Circuit Court of Appeals examined
the government’s claim of the official information privilege as a basis to
withhold documents sought under the Freedom of Information Act. It explained
that the “common law governmental privilege (encompassing and referred to
sometimes as the official or state secret privilege) . . . is only a qualified
privilege, contingent upon the competing interests of the requesting litigant and
subject to disclosure . . . .” Id.at 198 (internal citations omitted).

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The Ninth Circuit has since followed Kerr in requiring in camera review and a
balancing of interests in ruling on the government’s claim of the official
information privilege. See, e.g., Seminara v. City of Long Beach, 68 F.3d 481
(9th Cir. 1995) (affirming a magistrate judge order compelling disclosure and
stating “Federal common law recognizes a qualified privilege for official
information.”); Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116
(9th Cir. 1976) (quoting Kerr, 426 U.S. at 406) (“Also, as required by Kerr, we
recognize ‘that in camera review is a highly appropriate and useful means of
dealing with claims of governmental privilege.’”); Sanchez v. City of Santa Ana,
936 F.2d 1027, 1033-34 (9th Cir. 1990), as amended on denial of reh'g (Feb. 27,
1991), as amended on denial of reh'g (May 24, 1991) (internal citations omitted)

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Defendants included numerous documents in that submission that were clearly not privileged, many of which had
been shared with Plaintiff herself. The Court issued an order to show cause regarding these documents. (ECF No.
65). At the next hearing, defense counsel represented that those documents had already been provided to Plaintiff,
despite being included in the in camera submission. The Court discharged the Order to Show Cause. (ECF No.
67).

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(“Government personnel files are considered official information. To determine
whether the information sought is privileged, courts must weigh the potential
benefits of disclosure against the potential disadvantages. If the latter is greater,
the privilege bars discovery.”).

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In interpreting the official information privilege in this context, the Court also
looks to the U.S. Supreme Court’s statements related to the requirement that
prisoners exhaust administrative remedies. The Supreme Court has upheld the
“proper exhaustion” requirement in part because of the evidentiary value of the
documents generated as a result of that process. Woodford v. Ngo, 548 U.S. 81,
94-95 (2006) (“Finally, proper exhaustion improves the quality of those prisoner
suits that are eventually filed because proper exhaustion often results in the
creation of an administrative record that is helpful to the court. When a
grievance is filed shortly after the event giving rise to the grievance, witnesses
can be identified and questioned while memories are still fresh, and evidence
can be gathered and preserved.”).

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(ECF No. 75, pgs. 3-4).

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Applying these legal principles, the magistrate judge evaluated the documents and
ordered Defendants to produce the following:

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a. Witness statements.

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b. Reports by witnesses, including incident reports.

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c. Summaries of evidence or witness statements.

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d. Evidence, including reports of drug tests, photographs, or any other evidence
collected regarding the search at issue.

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(Id. at 10).

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The Court allowed Defendants to redact or withhold the following:

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a. Confidential identifying information about prison officers, if any, including their
first names, addresses, social security number or similar personal information.

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b. Statements of rights given to witnesses, or other purely procedural documents not
including any statement about the underlying event; and

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c. Conclusions or analysis of any prison authority regarding the complaint,
including whether staff acted appropriately and consistent with prison procedure.
However, summaries of any witness statements or evidence included in such
analysis documents must be provided.

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(Id.).

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II.

LEGAL STANDARD

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Pursuant to Federal Rule of Civil Procedure 72(a), when reviewing a magistrate judge's

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order, “[t]he district judge in the case must consider timely objections and modify or set aside

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any part of the order that is clearly erroneous or is contrary to law.” See also 28 U.S.C. §

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636(b)(1)(A); Local Rule 303. Under the clearly erroneous standard of review, a district court

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may overturn a magistrate judge's ruling “‘only if the district court is left with the definite and

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firm conviction that a mistake has been made.’” Computer Economics, Inc. v. Gartner Group,

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Inc., 50 F.Supp.2d 980, 983 (S.D. Cal. 1999) (quoting Weeks v. Samsung Heavy Indus. Co.,

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Ltd., 126 F.3d 926, 943 (7th Cir. 1997)). Under the contrary to law standard, a district court

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may conduct independent review of purely legal determinations by a magistrate judge. Id.
III.

DISCUSSION

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Defendants first argue that the magistrate judge erred in considering the Supreme Court

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case of Woodford v. Ngo, 548 U.S. 81 (2006), because it did not address the official

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information privilege. Defendants argue, “[w]ith reliance on Woodford, there would be no

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balancing of the competing interests, and internal deliberations, critiques, or witness statements

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would potentially be subject to release regardless of the security implications they may raise.”

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(ECF No. 77, at p. 3). Defendants argue that “The Magistrate Judge’s reliance on Woodford for

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analysis of the official information privilege is contrary to law and the ruling should be

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overruled.” (Id.).

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The Court has reviewed the magistrate judge’s order and does not find that it was

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contrary to the law based on its reference to Woodford. The magistrate judge cited applicable

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Ninth Circuit authority regarding the official information privilege and undertook a balance of

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potential benefits of disclosure against the potential disadvantages, consistent with that Ninth

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Circuit authority. The magistrate judge did not rely on Woodford to avoid this balancing test or

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to ignore legitimate security interests.

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Woodford’s endorsement of using evidence gathered as part of the inmate grievance process in

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later litigation. Woodford, 548 U.S. at 94-95 (“Finally, proper exhaustion improves the quality of

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those prisoner suits that are eventually filed because proper exhaustion often results in the creation

There was nothing legally erroneous about citing

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of an administrative record that is helpful to the court. When a grievance is filed shortly after the

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event giving rise to the grievance, witnesses can be identified and questioned while memories are

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still fresh, and evidence can be gathered and preserved.”). That endorsement is relevant to the

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balancing test in that it shows the relevance and beneficial use of evidence gathered in a

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prison’s investigation, which should be balanced against the prison’s security interests in

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evaluating the official information privilege. In short, it is appropriate to note that the Supreme

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Court has referred to the usefulness of witness statements that were generated from an

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investigation of a grievance. Citing to Woodford in this way is not a reason to overrule the

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magistrate judge’s order.

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Defendants next argue that the magistrate judge erred in considering the pro se status of
Plaintiff. The relevant parts of the magistrate judge’s decision are as follows:
Indeed, the documents include statements from Defendants and the Plaintiff in this
case. Surely what the parties said at the time of the event about what happened is
exceedingly relevant. This is all the more true in a case with a pro se incarcerated
witness with limited ability to depose individuals. Having the defendants’ own
statements will greatly assist the parties and the finders of fact in determining
what happened that day.

(ECF No. 75, p. 6); and
The Court is also troubled by the use of the privilege in this instance.
Defendants withheld all evidence generated from their investigation by claiming
that any disclosure would threaten safety and security. The content of the
documents do not bear out Defendants’ description. Instead, it appears that
Defendants improperly invoked the official information privilege to withhold all
pertinent evidence from Plaintiff, contrary to Supreme Court case law endorsing
disclosure of such evidence. Moreover, they took these questionable positions in
a case with a pro se litigant, who lacks the legal training to adequately challenge
Defendants’ positions.
(ECF No. 75, p. 9).
The Court does not find that these statements render the magistrate judge’s order legally
The Ninth Circuit has stated that the reviewing court should evaluate “the

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erroneous.

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competing interests of the requesting litigant.” Kerr, 511 F.2d at 198. See also Sanchez, 936

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F.2d at 1033-34 (9th Cir. 1990), as amended on denial of reh'g (Feb. 27, 1991), as amended on

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denial of reh'g (May 24, 1991) (“To determine whether the information sought is privileged,
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courts must weigh the potential benefits of disclosure against the potential disadvantages.”). It

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was not legally erroneous for the magistrate judge to note the substantial benefits in this case of

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witness statements made by Plaintiff and Defendants at the time of the incident. It was not

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legal error to note that such information was of great value where a Plaintiff likely cannot take

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a deposition.

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The magistrate judge’s second comment regarding her opinion of Defendants’ position

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also was not legal error. Although this paragraph appears to be the magistrate judge’s own

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opinion of Defendants’ positions rather than her legal analysis, after having reviewed the

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documents submitted for review and Defendants’ position, this Court must agree with the

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magistrate judge’s assessment.
Next, Defendants argue that the magistrate judge erred in her balancing of the

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competing interests in this case.

Defendants claim that “the Magistrate Judge’s Order

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disregarded the safety and security concerns of other inmates in the institution citing that it is

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not snitching merely because they do not accuse Plaintiff of improper conduct,” and “[t]he

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Magistrate Judge’s Order similarly disregarded Defendants’ concerns where the inmate is

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shown to be involved in an ongoing criminal enterprise.” (ECF No. 77, pgs. 5-6). Defendants

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also cite the concern of “preserving confidentiality of witnesses.” (Id. at 6).

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The magistrate judge considered Defendants’ arguments regarding safety and security

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in pages six through nine of her order. This Court has reviewed the underlying documents and

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concurs. As the Magistrate Judge noted the witness statements were gathered after Plaintiff

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herself identified those witnesses to be interviewed. These are not confidential informants—

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they are not confidential and they did not “inform,” as they do not accuse Plaintiff of anything

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improper.

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security interest, these documents provide no more information than Defendants’ own brief.

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The source of the prison’s information regarding contraband is not disclosed or discussed.

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(Documents submitted for in camera review at 016-22, 046). Similarly, there is no discussion

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of how the prison investigated the contraband. The documents concern what happened after

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officers confronted Plaintiff, not how they learned of the contraband.

Moreover, while protection of a confidential informant is indeed a legitimate

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Finally, Defendants claim that “Plaintiff has been apprised of the results of the

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investigation.” (ECF No. 77, p. 6). The magistrate judge addressed this issue when she wrote

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“Defendants do not attach the documents provided to Plaintiff. Certainly if Plaintiff already

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has these documents, there is no issue with disclosure.

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privilege and briefing, it appears that Defendants are withholding the witness statements

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themselves and other evidence. To the extent Defendants are referring to the conclusions of the

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prison after the investigation, such an opinion is far from a substitute for actual witness

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statements and evidence, which could be used to impeach such witnesses at trial.” (ECF No.

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75, pgs. 8-9).

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But given Defendants’ claim of

Defendants have not attached any documents to their objection, and the

magistrate judge’s reasoning here is sound.
IV.

CONCLUSION
For the foregoing reasons, the May 1, 2018 order is not clearly erroneous or contrary to

law, and Defendants’ request for reconsideration (ECF No. 77) is DENIED.

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IT IS SO ORDERED.
Dated: May 17, 2018
SENIOR DISTRICT JUDGE

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