Harris v. German et al

Filing 77

ORDER GRANTING Plaintiff's Motion to Compel Production of Documents 58 signed by Magistrate Judge Gary S. Austin on 9/24/2019. Deadline to produce documents 10/25/2019. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEVONTE HARRIS,

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Plaintiff,

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1:15-cv-01462-DAD-GSA-PC
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL
PRODUCTION OF DOCUMENTS
(ECF No. 58.)

vs.
HUMBERTO GERMAN, et al.,

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DEADLINE TO PRODUCE
DOCUMENTS: OCTOBER 25, 2019

Defendants.

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I.

BACKGROUND

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Devonte Harris (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis with

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this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with the First

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Amended Complaint filed by Plaintiff on March 14, 2016, against defendants Correctional

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Officer (C/O) Humberto German, C/O Philip Holguin, and C/O R. Burnitzki (collectively,

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“Defendants”), for use of excessive force in violation of the Eighth Amendment; and against

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defendant C/O Philip Holguin for retaliation in violation of the First Amendment.1 (ECF No.

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8.)

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On January 17, 2019, the court dismissed all other claims and defendants from this case for
Plaintiff’s failure to state a claim. (ECF No. 31.)

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On January 31, 2019, Plaintiff filed a motion to compel production of documents. (ECF

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No. 58.) On February 14, 2019, Defendants filed an opposition to the motion. (ECF No. 62.)

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Plaintiff did not file a reply to the opposition.

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On August 12, 2019, the court issued an order requiring Plaintiff to address the status of

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his request in the motion to compel for production of two videotapes in light of Defendants’

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report that they had provided those videotapes to Plaintiff for viewing. (ECF No. 69.) On

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September 20, 2019, Plaintiff filed a response to the court’s order, withdrawing his request for

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production of the two videotapes. (ECF No. 76.)
The remaining requests in Plaintiff’s motion to compel are now before the court. Local

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Rule 230(l).

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II.

PLAINTIFF’S ALLEGATIONS AND CLAIMS AT ISSUE

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A.

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The events at issue in the operative First Amended Complaint allegedly occurred at

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Allegations

Corcoran State Prison (CSP) in Corcoran, California, where Plaintiff is presently incarcerated.

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A summary of Plaintiff’s allegations in the First Amended Complaint follow:

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On February 24, 2011, Plaintiff was housed in the Security Housing Unit. At about

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1:15 p.m., C/Os were releasing prisoners to the exercise modules. C/Os defendant German,

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defendant Holguin, Menzie [not a defendant], Lovelady [not a defendant], and Botello [not a

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defendant] skipped Plaintiff’s cell during yard and then ignored him when he called them to ask

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why. C/O Womack [not a defendant] was working in the control booth. Defendants German

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and Holguin came back and released Plaintiff for yard last. Plaintiff stripped out and defendant

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German kept asking him, “What’s the problem?”

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Plaintiff’s clothing as he stood naked, apparently expecting an answer. Plaintiff said, “I’m

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done stripping out, can I have my clothes back?” Plaintiff got dressed and defendant German

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handcuffed him.

Defendant German continued to hold

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As they escorted Plaintiff to the yard, defendant Holguin placed Plaintiff against the

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wall by the exit door of the building and began pressing him up against the wall. Defendant

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German said, “You are getting your yard, so what’s the problem?” Plaintiff said that defendant
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German was pressing him hard into the wall unnecessarily. Defendant German said shut up or

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you are not going to receive yard. Plaintiff said he knows the law and has family who care, so

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he doesn’t care what they do. Defendant German said shut up and don’t talk. They exited the

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building and walked towards the yard cages.

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defendant German from the track holding Plaintiff aggressively and asked, “What’s going on?”

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Plaintiff began to tell him, and defendant German jerked Plaintiff to a standstill and said, “I

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thought I told you not to talk.” At seeing this, Sergeant Martinez said to just escort Plaintiff

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back to his cell.

Sergeant Martinez [not a defendant] saw

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Upon entering the building, defendants German and Holguin slammed Plaintiff’s face

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into the divider of their office window. Holguin held Plaintiff’s face sideways against the

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window. German kicked Plaintiff’s legs apart, making him do the splits. Holguin shouted,

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“Fuck the law and fuck your family.” German said, “What you wanna do” over and over. C/O

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German threatened to take Plaintiff to the ground. Sgt. Martinez, C/O Menzie, C/O Lovelady,

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and C/O Botello entered the building. C/O Womack witnessed from the control booth. They

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did nothing, nor said nothing while Holguin had Plaintiff’s face pressed against the window

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and German had Plaintiff’s legs unnaturally spread apart. Plaintiff said he just wanted to go to

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yard, and German said, “You are not going to yard, so where do you want to go, back to your

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cell?” Plaintiff said he wanted to talk to the lieutenant for an excessive force interview.

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Sergeant Martinez said, “You’ll get what you got coming, you’ll get your excessive force

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interview.”

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Defendants German and Holguin escorted Plaintiff back to his cell. Plaintiff suffered

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knots on his forehead, a swollen cheek, pain in his neck, pain on the right side of his chest, and

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pain in the small of his back.

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interviewed Plaintiff and documented his injuries on video. Sgt. Rasley [not a defendant]

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operated the video camera. Plaintiff was medically evaluated by a nurse. On February 27,

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2011, an RN evaluated Plaintiff. On February 29, 2011, another RN evaluated him. At some

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point, Hubbard and Rasley [not defendants] destroyed the February 26, 2011 video

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documenting his injuries while they were still visible. Plaintiff filed a prison appeal. On May

On February 26, 2011, Sgt. Hubbard [not a defendant]

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16, 2011, two sergeants conducted another videotaped interview of Plaintiff, but his injuries

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had already healed. They claimed to have lost the February 26, 2011 video.

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On March 10, 2011, defendant German denied Plaintiff his breakfast in retaliation for

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the excessive force allegations Plaintiff made against him. Defendant German refused

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Plaintiff’s inmate request form asking why.

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On April 18, 2011, C/O Cordova [not a defendant] and C/O Borgess [not a defendant]

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retaliated against Plaintiff for the allegations he made against their co-workers, defendants

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German and Holguin.

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segregation record saying they had delivered both to Plaintiff. Later that morning, C/O Menzie

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[not a defendant] escorted the nurse. When the nurse delivered Plaintiff’s medication, Plaintiff

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held the food port on his cell and told Menzie he wanted to see the sergeant about his breakfast

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and lunch being withheld. Menzie continued escorting the nurse. Defendant Holguin came to

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Plaintiff’s cell to see if he wanted to go to a disciplinary hearing. Plaintiff refused because he

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was holding the food port. Defendant Holguin summoned Sgt. Martinez who ordered Holguin

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to pepper spray Plaintiff to secure the food port. Defendant Holguin pepper sprayed Plaintiff

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and Plaintiff released the food port and went to the middle of his cell, turning his back.

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Defendant Holguin put his pepper spray through the food port and began spraying Plaintiff in

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the back of his head, neck, and back. Plaintiff suffered severe burning sensations and chest

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pain. Borgess [not a defendant] and another C/O escorted Plaintiff to the hospital to be

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evaluated. Borgess and Cordova [not defendants] doctored Plaintiff’s segregation records to

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falsely report that he had refused his breakfast and lunch. Plaintiff was moved to a different

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housing unit in the SHU.

They denied Plaintiff breakfast and lunch, and then falsified his

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On August 28, 2011, defendant C/O Holguin and C/O Pano [not a defendant] came to

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Plaintiff’s housing unit to escort him to the yard. They conducted an unclothed body search,

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handcuffed Plaintiff behind his back and began walking outside toward the yard cages.

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Defendant Holguin told Plaintiff to pull up his boxers, which was impossible because Plaintiff

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was handcuffed behind his back.

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Defendant Holguin then began escorting Plaintiff to the rotunda of his housing unit. There was

Plaintiff told defendant Holguin to pull his eyes up.

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a cage located there and while guiding Plaintiff into it, defendant Holguin shoved Plaintiff into

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the wall causing pain in Plaintiff’s shoulder. Holguin then secured the cage and left. C/O

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Lovelady [not a defendant] and defendant C/O Burnitzki walked by and asked Plaintiff what

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was going on. Plaintiff said that defendant Holguin had used excessive force against him, and

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the sergeant should be notified.

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defendant Holguin came to the rotunda to take Plaintiff back to his cell when yard time was

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over.

They took no action regarding this matter.

Afterward,

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Defendants Holguin and Burnitzki and C/O Leal [not a defendant] took Plaintiff to his

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cell but did not have the control booth C/O close the cell door. They came all the way into the

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cell with Plaintiff. Defendants Burnitzki and Holguin began pushing Plaintiff back and forth to

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each other several times. Defendant Holguin then pushed Plaintiff into the wall, jammed his

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left arm into Plaintiff’s back and used his right hand to press Plaintiff’s face against the wall

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while defendant Burnitzki pulled on the handcuffs from behind. Defendant Holguin told

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Plaintiff, “You’re not hit, you are going to stop disrespecting me and I don’t care about any

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lawsuit.” Plaintiff said he did not disrespect him. Defendant Holguin was mad because he was

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under investigation by internal affairs for previously using excessive force against Plaintiff.

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Defendant Burnitzki then said, “Internal affairs are not going to do shit.” Holguin said next

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time they are going to really hurt him.

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handcuffs to the cell door and took his handcuffs off.

Defendant Holguin then pulled Plaintiff by the

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Plaintiff requests monetary and declaratory relief.

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B.

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Claims - Legal Standards
1.

Excessive Force

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“[W]henever prison officials stand accused of using excessive physical force in

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violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether

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force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

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sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). “In determining

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whether the use of force was wanton and unnecessary, it may also be proper to evaluate the

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need for application of force, the relationship between that need and the amount of force used,
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the threat reasonably perceived by the responsible officials, and any efforts made to temper the

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severity of a forceful response.” Id. (internal quotation marks and citations omitted). “The

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absence of serious injury is . . . relevant to the Eighth Amendment inquiry, but does not end it.”

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Id.

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2.

Retaliation

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Allegations of retaliation against a prisoner’s First Amendment rights to speech or to

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petition the government may support a 1983 claim. Rizzo v. Dawson, 778 F.2d 5527, 532 (9th

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Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v.

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Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some

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adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that

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such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action

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did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

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567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012);

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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

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III.

MOTION TO COMPEL

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A.

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Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery

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regarding any non-privileged matter that is relevant to any party’s claim or defense and

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proportional to the needs of the case, considering the importance of the issues at stake in the

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action, the amount in controversy, the parties’ relative access to relevant information, the

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parties’ resources, the importance of the discovery in resolving the issues, and whether the

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burden or expense of the proposed discovery outweighs its likely benefit. Information within

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this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P.

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26(b)(1). “Relevance for purposes of discovery is defined very broadly.” Garneau v. City of

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Seattle, 147 F.3d 802, 812 (9th Cir. 1998).

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documents under Rule 34, a party is to produce all relevant documents in its “possession,

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custody, or control.” Fed. R. Civ. P. 34(a)(1).

Legal Standard

In response to a request for production of

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Under Rule 37(a), a party may move for an order compelling disclosure or discovery if

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“a party fails to produce documents. . . as requested under Rule 34.” Fed. R. Civ. P.

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37(a)(3)(B)(iv). The party seeking to compel discovery has the initial burden to establish that

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its request is proper under Rule 26(b)(1). If the request is proper, “[t]he party opposing

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discovery then has the burden of showing that the discovery should be prohibited, and the

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burden of clarifying, explaining or supporting its objections.” Bryant v. Ochoa, No. 07-CV-

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200 JM, 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009). The party resisting discovery is

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“required to carry a heavy burden of showing” why discovery should be denied. Blankenship

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v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).

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The court may order a party to provide further responses to an “evasive or incomplete

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disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). “District courts have ‘broad

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discretion to manage discovery and to control the course of litigation under Federal Rule of

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Civil Procedure 16.’” Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting

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Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011)). Generally, if the

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responding party objects to a discovery request, the party moving to compel bears the burden of

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demonstrating why the objections are not justified. E.g., Grabek v. Dickinson, No. CIV S–10–

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2892 GGH P, 2012 WL 113799, at *1 (E.D.Cal. Jan. 13, 2012); Ellis v. Cambra, No. 1:02–cv–

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05646–AWI–SMS (PC), 2008 WL 860523, at *4 (E.D.Cal. Mar. 27, 2008). This requires the

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moving party to inform the court which discovery requests are the subject of the motion to

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compel, and, for each disputed response, why the information sought is relevant and why the

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responding party’s objections are not meritorious. Grabek, 2012 WL 113779, at *1.
Plaintiff’s Motion

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B.

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Plaintiff seeks to review an investigatory report containing a “use-of-force critique and

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qualitative evaluation of [Plaintiff’s] excessive force allegations against defendants.” (ECF No.

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58 at 2 ¶ 5.) Plaintiff submitted a request to defendant P. Holguin for production of the review

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and evaluation. It was objected to on the grounds that it was overly broad, vague, and protected

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by the official information privilege. Using the ten factors from the test in Kelly v. City of San

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Jose, 114 F.R.D. 653, 659 (N.D. Cal. 1987), Plaintiff argues that the Confidential Appeal
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inquiry package [investigatory report] should be disclosed because Defendants cannot assert an

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official information privilege to justify withholding any portion of the Confidential Appeal

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supplement to Plaintiff’s administrative appeal log no. COR-11-01080. At issue is Plaintiff’s

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request for production of documents, set one, no. 1, and Defendant P. Holguin’s response

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directly below.

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PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE

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REQUEST FOR PRODUCTION NO. 1:

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“Review of use of force critique and qualitative evaluation of Plaintiff’s allegation of

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excessive force against defendant on February 24, 2011.”

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RESPONSE TO REQUEST FOR PRODUCTION NO. 1:

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“Defendant objects to this request on the grounds that it is overly broad, is vague as to

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‘qualitative evaluation,’ assumes facts which have not been admitted, and calls for the

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production

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Code of Regulations, Title 15, § 3321 and § 3370, and the official information privilege.

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Without waiving these objections, and after a reasonable search and diligent inquiry, no use of

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force critique could be located within Defendant’s possession, custody, or control.

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responsive, non-confidential documents in Defendant’s possession, custody, or control are

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attached as Exhibit A. See attached Privilege Log.”

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(ECF No. 58 at 14-15.)

of

documents

which

are

protected

from

disclosure

by

California

All

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Defendants submitted a declaration by Mary Kimbrell, Litigation Coordinator at

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Corcoran State Prison, in support of Defendants’ privilege log, opposing disclosure of the

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responsive confidential appeal supplement to administrative appeal log no. COR-11-01080.2

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Plaintiff claims that the requested information is particularly important to his case because the

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excessive use of force interview, videotaped a day after the incident when Plaintiff’s wounds

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were still fresh and visible, disappeared in spite of numerous protective measures to preserve

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the chain of evidence.

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Plaintiff has submitted Defendants’ privilege log and declaration as exhibits to his motion to
compel. (ECF No. 58 at 19-23.)

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Defendants’ Opposition

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C.

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In opposition to the motion to compel, Defendants argue that the official information

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privilege justifies their withholding of the confidential investigatory report sought by Plaintiff,

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and disclosure of the report would violate state law and jeopardize the safety and security of the

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institution, correctional staff, and other inmates. Defendants submitted a privilege log and M.

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Kimbrell’s declaration with their responses to Plaintiff’s request for production of documents.

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Defendants argue that Plaintiff has not met his burden to establish that disclosure of this

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document overrides Defendants’ concerns. Defendants contend that the Kelly test has no place

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here.

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D.

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As noted above, Defendants maintain that the investigatory report sought by Plaintiff is

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privileged. Rather than provide Plaintiff with the investigatory report, Defendants served

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Plaintiff with a privilege log that identified the documents withheld as “Confidential Appeal

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Supplement to 602 log no. COR-11-01080” and asserted the following: “Privilege: California

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Code of Regulations Title 15, §§ 3321 and 3370; official-information privilege; and the safety

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and security of the institution, staff, and inmates. See Declaration of M. Kimbrell.” (ECF No.

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58 at 19.)

Evaluation of Defendants’ Official Information Privilege Claim

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Federal common law recognizes a qualified privilege for official information. Kerr v.

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U.S. Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975). In determining what

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level of protection should be afforded by this privilege, courts conduct a case by case balancing

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analysis, in which the interests of the party seeking discovery are weighed against the interests

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of the governmental entity asserting the privilege. Soto v. City of Concord, 162 F.R.D. 603,

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613–14 (N.D.Cal. 1995).

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disclosure.” Kelly, 114 F.R.D. at 661. However, before a court will engage in this balancing

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of interests, the party asserting the privilege must properly invoke the privilege by making a

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“substantial threshold showing.” Soto, 162 F.R.D. at 613. The privilege “must be formally

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asserted and delineated in order to be raised properly,” and the party opposing disclosure must

The balancing test “is moderately pre-weighted in favor of

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“state with specificity the rationale of the claimed privilege.” Kerr v. United States Dist. Ct. for

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the Northern Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975).

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In order to fulfill the threshold requirement, the party asserting the privilege must

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submit a declaration or affidavit from a responsible official with personal knowledge of the

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matters to be attested to in the affidavit. Id. “The claiming official must ‘have seen and

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considered the contents of the documents and himself [or herself] have formed the view that on

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grounds of public interest they ought not to be produced’ and state with specificity the rationale

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of the claimed privilege.”

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affirmation that the agency generated or collected the material in issue and has maintained its

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confidentiality; (2) a statement that the official has personally reviewed the material in

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question; (3) a specific identification of the governmental or privacy interests that would be

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threatened by disclosure of the material to plaintiff and/or his lawyer; (4) a description of how

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disclosure subject to a carefully crafted protective order would create a substantial risk of harm

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

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be done to the threatened interests if disclosure were made.” Soto, 162 F.R.D. at 613 (quoting

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Kelly, 114 F.R.D. at 670).

Kerr, 511 F.2d at 198.

The affidavit must include: “(1) an

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The party resisting discovery must specifically describe how disclosure of the requested

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information in that particular case would be harmful. Soto, 162 F.R.D. at 613-14. If the

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opposing party fails to meet the threshold burden requirement of establishing cause to apply the

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privilege, the privilege will be overruled. Chism v. County of San Bernardino, 159 F.R.D. 531,

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533 (C.D. Cal. 1994). Ordinarily, a “party asserting an evidentiary privilege has the burden to

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demonstrate that the privilege applies to the information in question.” Tornay v. United States,

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840 F.2d 1424, 1426 (9th Cir. 1988) (citing United States v. Hirsch, 803 F.2d 493, 496 (9th Cir.

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1986); In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir.

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2011) (explaining that “the party opposing disclosure has the burden of establishing that there

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is good cause to continue the protection of the discovery material”).

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“State privilege doctrine, whether derived from statutes or court decisions, is not
binding on federal courts in these kinds of cases.” Kelly, 114 F.R.D. at 655.
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Defendants argue that disclosure of the Confidential Appeal Supplement requested by

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Plaintiff would present a serious threat to the safety and security of CDCR institutions, its staff,

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and other inmates, and would undermine the ability of CDCR to conduct self-critical analysis

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and engage in deliberative and investigative processes. In support of this argument, Defendants

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have provided the declaration of M. Kimbrell, Litigation Coordinator at Corcoran State Prison.

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(Kimbrell Decl., ECF No. 58 at 21.)

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In relevant part, M. Kimbrell declares:
“4.

The Confidential Appeal inquiry package for any given

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administrative appeal contains confidential statements made by third-party

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inmates and staff members. Disclosing such information would invade the

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privacy rights of these individuals, because witnesses (both staff and inmate)

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often cooperate with investigations with the expectation that their statements

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will remain confidential.

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cooperate with investigations if they knew their statements could be disclosed

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and they could be revealed as cooperating with investigators, because of the

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increased likelihood of being targeted for assault by other inmates. And staff

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witnesses may not be as forthright in cooperating with investigations if they

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knew that their words could be used against them by an inmate in civil litigation.

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5.

Inmate witnesses are significantly less likely to

Additionally, information obtained during staff investigations is

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maintained as confidential to encourage staff to make truthful statements and to

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encourage investigating staff to accurately report their findings. Disclosing this

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type of information would hinder CDCR’s ability to conduct accurate and

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reliable investigations, which would jeopardize the safety and security of prisons

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under its management.

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6.

Further, these documents are also part of the deliberative policy-

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making process and disclosure of these documents to inmates will set a

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precedent to other inmates that they can obtain these internal documents at any

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time. Disclosure of such documents would educate inmates on the methods by
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which staff are evaluated. Armed with this information, inmates could falsely

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accuse staff members or otherwise manipulate the investigation process, thereby

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hampering future investigations.

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7.

Finally, such documents are internal memoranda used in the

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review and evaluation of staff. As internal communications between institution

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staff, these documents contain several statements which are pre-decisional and

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deliberative between CDCR staff and the agency decision-maker on whether

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Defendants acted appropriately. These documents contain recommendations

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and advisory opinions which reflect the personal opinions of the writers rather

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than the policy of the agency. Copies of these documents are not given to

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inmates due to their confidential nature and disclosure would expose the inner

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workings of the institution.”

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(Id. at 22-23.)

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Defendants argue that “the Kelly test has no place here” because the test is “meant to

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apply to local police agencies” and “as Plaintiff correctly notes, several of the factors are

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nonsensical or irrelevant in a correctional setting.” (ECF No. 62 at 3:7-10.) However, Kelly

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involves an excessive force claim against an officer, and the officer seeks to withhold internal

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investigation files raising similar enough governmental concerns to subject Plaintiff’s request

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for an investigatory report to a Kelly test analysis. Furthermore, the burden is on Defendants,

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and not Plaintiff, to demonstrate that the privilege applies to the information in question, which

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Defendants have not met here. Tornay, 840 F.2d at 1426.

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Defendants’ legal position appears to amount to the following: every Confidential

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Appeal inquiry package is privileged and can be withheld from discovery merely by listing it

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on a privilege log. Defendants appear to have withheld every internal document without regard

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to its content or importance to the case. Nowhere in Defendants’ opposition of supporting

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declaration do Defendants address the importance of the documents to Plaintiff, or the merits of

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the case. Defendants’ position that all documents related to investigations can be withheld from

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discovery, regardless of their importance to the case or specific security concerns, also ignores
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Supreme Court case law.

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WL 4054022, at *4 (E.D. Cal. Aug. 28, 2019). In upholding the Prison Litigation Reform Act

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(PLRA)’s exhaustion requirement, the United States Supreme Court held that “proper

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exhaustion improves the quality of those prisoner suits that are eventually filed because proper

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exhaustion often results in the creation of an administrative record that is helpful to the court.

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When a grievance is filed shortly after the event giving rise to the grievance, witnesses can be

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identified and questioned while memories are still fresh, and evidence can be gathered and

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preserved.” Id. (quoting Woodford v. Ngo, 548 U.S. 81, 94–95 (2006)). This passage both

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shows an expectation that such evidence will be provided in the normal course of litigation, and

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that such evidence, especially accounts from witnesses, greatly contribute to the quality of the

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litigation. Wells, 2019 WL 4054022 at *4. Withholding all documents, including statements

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from witnesses that are made close in time to the incident, from Plaintiff as privileged is

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directly contrary to this holding. Id. (citing see Caruso v. Solorio, 2018 WL 2254365, at *2

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(E.D. Cal. 2018) (“There was nothing legally erroneous about citing Woodford’s endorsement

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of using evidence gathered as part of the inmate grievance process in later litigation. . . . That

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endorsement is relevant to the balancing test in that it shows the relevance and beneficial use of

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evidence gathered in a prison’s investigation, which should be balanced against the prison’s

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security interests in evaluating the official information privilege. In short, it is appropriate to

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note that the Supreme Court has referred to the usefulness of witness statements that were

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generated from an investigation of a grievance.”)).

See Wells v. Gonzales, No. 1:17-CV-01240-DAD-EPG-PC, 2019

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“The Court finds that the privilege log and supporting declaration produced by

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Defendants are inadequate.” See, e.g., Cota v. Scribner, 09CV2507-AJB BLM, 2013 WL

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3189075, at *5 ¶ 3 (S.D. Cal. June 21, 2013). To invoke the official information privilege, the

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government must provide a declaration establishing the five elements of the Kelly test. See

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Kelly, 114 F.R.D. at 669–70. Id. Here, the declaration fails to adequately address elements 2,

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4, and 5. Id. The declarant, M. Kimbrell, fails to declare that she personally reviewed the

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material in question, as required by element 2. Id. The privilege log is totally inadequate in

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that it fails to identify any specific document or material withheld and merely names the entire
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1

report requested by Plaintiff's discovery requests. Id.

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indicates that Defendants have not collected all responsive documents, carefully reviewed

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them, individually evaluated the potential threat or harm due to disclosure, and then identified

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which documents were protected by the official information privilege pursuant to elements 4

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and 5. Id. Accordingly, the Court finds that Defendants have failed to make a “substantial

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threshold showing” as a basis for withholding documents under the official information

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privilege and therefore Defendants may not withhold any documents pursuant to this privilege.

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Id.

This complete lack of specificity

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Even if Defendants had made a substantial threshold showing, this does not overcome

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the pre-weighted balancing test in favor of disclosure. Id. The potential for harm does not

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outweigh the strong public policy in favor of uncovering civil rights violations. Id. Notably, it

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appears that Plaintiff is unable to acquire a copy of the investigation report by any other means.

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Id. The sought-after information has a high degree of potential significance to Plaintiff’s case.

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In an excessive force case such as this, the relevance and discoverability of officers’

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disciplinary records, including unfounded complaints and allegations of misconduct, are widely

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recognized. Id. (citing see, e.g., Gibbs v. City of New York, 243 F.R.D. 95 (S.D.N.Y.2007);

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Frails v. City of New York, 236 F.R.D. 116 (E.D.N.Y.2006); Floren v. Whittongton, 217

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F.R.D. 389 (S.D.W.Va. 2003); Hampton v. City of San Diego, 147 F.R.D. 227 (S.D.Cal.

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1993)). Nevertheless, “[f]ederal courts are not insensitive to privacy [rights] that arise in

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discovery matters. . . but these rights must be balanced against the great weight afforded to

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federal law in civil rights cases against corrections officials.” Ibanez v. Miller, 2009 WL

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1706665, at *3 (E.D.Cal. June 17, 2009) (citing Soto, 162 F.R.D. at 613). Thus, recognizing the

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privacy rights of the witnesses in the reports, as well as the potential for harm to these

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witnesses, the Court finds it appropriate to permit Defendants to redact the names, prisoner

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identification numbers, and any other identifying information of witnesses who are not a party

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to this action.

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Defendants have also objected to Plaintiff’s request for the confidential report on the

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ground that the document was not found in Defendants’ possession, custody, or control.
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1

Defendants’ responses should be consistent with their right to request documents pursuant to

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California Government Code § 3306.5. (“Each employer shall keep each public safety officer’s

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personnel file or a true and correct copy thereof, and shall make the file or copy thereof

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available with a reasonable period of time after a request thereof by the officer.”) Accordingly,

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Defendants shall provide to Plaintiff copies of the documents at issue requested by Plaintiff that

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are in the possession, custody, or control of any Defendant or the CDCR.

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Defendants shall produce the redacted documents to Plaintiff no later than October

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25, 2019.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion to compel, filed on January 31, 2019, is GRANTED;

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2.

No later than October 25, 2019, Defendants shall provide Plaintiff with a copy

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of the Confidential Appeal Supplement to 602 log no. COR-11-01080 dated

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May 22, 2011; and

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3.

Defendants are permitted to redact the names, prisoner identification numbers,

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and any other identifying information of witnesses who are not a party to this

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action.

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IT IS SO ORDERED.
Dated:

September 24, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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