Winston, Jr v. Cardenas

Filing 29

ORDER Re: Production of Documents Submitted for In Camera Review, signed by Magistrate Judge Erica P. Grosjean on 4/2/2019: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MYOHO MYSTIC WINSTON, JR.,

ORDER RE: PRODUCTION OF
DOCUMENTS SUBMITTED FOR IN
CAMERA REVIEW

Plaintiff,

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Case No. 1:18-cv-00857-LJO-EPG (PC)

v.

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(ECF NO. 26)

J. CARDENAS,

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Defendant.

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I.

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Myoho Winston, Jr. (“Plaintiff”), is a state prisoner proceeding pro se and in forma

BACKGROUND

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On January 30, 2019, the

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Court held an Initial Scheduling Conference (“Conference”). After the Conference, the Court

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directed Defendant to “submit the documents he withheld from his initial disclosures under the

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official information privilege to the Court for in camera review.” (ECF No. 26, p. 2).

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The Court has conducted an in camera review of the documents provided by Defendant.

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For the reasons described below, the Court finds that the documents at pages 9, 30-37, 48, 50-

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52, and 54-56, may be withheld under the official information privilege.1 The remainder of the

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As Defendant did not Bates stamp the documents, the above-listed page numbers refer to the page
numbers of the PDF document Defendant submitted for in camera review.

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documents shall be produced to Plaintiff within fourteen days.

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II.

LEGAL STANDARDS

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In Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192 (9th Cir. 1975),

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aff'd, 426 U.S. 394 (1976), the Ninth Circuit Court of Appeals examined the government’s

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claim of the official information privilege as a basis to withhold documents sought under the

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Freedom of Information Act. It explained that the “common law governmental privilege

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(encompassing and referred to sometimes as the official or state secret privilege) . . . is only a

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qualified privilege, contingent upon the competing interests of the requesting litigant and

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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

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balancing of interests in ruling on the government’s claim of the official information privilege.

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See, e.g., Seminara v. City of Long Beach, 68 F.3d 481 (9th Cir. 1995) (affirming a magistrate

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judge order compelling disclosure and stating “Federal common law recognizes a qualified

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privilege for official information.”); Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114,

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1116 (9th Cir. 1976) (quoting Kerr, 426 U.S. at 406) (“Also, as required by Kerr, we recognize

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‘that in camera review is a highly appropriate and useful means of dealing with claims of

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governmental privilege.’”); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir.

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1990), as amended on denial of reh'g (Feb. 27, 1991), as amended on denial of reh'g (May 24,

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1991) (internal citations omitted) (“Government personnel files are considered official

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information. 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 greater, the

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privilege bars discovery.”).

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In interpreting the official information privilege in this context, the Court also looks to

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the U.S. Supreme Court’s statements related to the requirement that prisoners exhaust

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administrative remedies. The Supreme Court has upheld the “proper exhaustion” requirement

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in part because of the evidentiary value of the documents generated as a result of that process.

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Woodford v. Ngo, 548 U.S. 81, 94-95 (2006) (“Finally, proper exhaustion improves the quality

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of those prisoner suits that are eventually filed because proper exhaustion often results in the
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creation of an administrative record that is helpful to the court. When a grievance is filed

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shortly after the event giving rise to the grievance, witnesses can be identified and questioned

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while memories are still fresh, and evidence can be gathered and preserved.”).

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III.

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DOCUMENTS WITHHELD BY DEFENDANTS UNDER THE OFFICIAL
INFORMATION PRIVILEGE

Defendants have withheld memoranda written by staff; staff sign-in sheets; handwritten

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summaries of when certain events (such as pill line and chow) occurred; an Institutional

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Executive Review Committee Critique and Qualitative Evaluation; crime/incident reports,

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including reports written by Defendant and witnesses to the incident; a medical report of injury

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or unusual occurrence; reviews of the use of force incident; holding cell logs; a notice of

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unusual occurrence/incident; an inmate property inventory sheet; an administrative segregation

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unit placement notice, a rules violation report; and a confidential supplement to Appeal Log

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No. CCI-0-18-00056.2

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IV.

ANALYSIS OF OFFICIAL INFORMATION PRIVILEGE

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The Court has conducted an in camera review and finds that the witness statements

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included in the documents, as well as summaries of what occurred, are highly relevant to the

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dispute and do not implicate any legitimate security interest. They are accounts of the incident

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at issue, given close in time to the event. These are precisely the sort of statements that the

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Supreme Court envisioned when it stated that “proper exhaustion often results in the creation of

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an administrative record that is helpful to the court” because “witnesses can be identified and

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questioned while memories are still fresh, and evidence can be gathered and preserved.”

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Woodford, 548 U.S. at 94-95.

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Indeed, the documents include a statement from the defendant in this case. Surely what

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a party said at the time of the event about what happened is highly relevant. This is all the

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more true in a case with a pro se incarcerated witness with limited ability to depose individuals.

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Having Defendant’s own statements will greatly assist the parties and the fact finders in

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This list includes the primary category of documents, but does not list every type of document that

appeared.

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determining what happened that day.
Additionally, there appears to be no reason to withhold the medical report of injury, the

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administrative segregation notice, the rules violation report, or the inmate property inventory

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sheet under the official information privilege. In fact, Plaintiff has likely already seen these

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documents, and may even have access to them.

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As to the documents such as handwritten summaries of when certain events occurred,

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staff sign-in sheets, and the holding cell logs, there appears to be no safety or security reasons

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to withhold these documents, and they have at least some relevance. Accordingly, the Court

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will require that these documents be produced to Plaintiff.

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However, the Court will allow Defendant to withhold all documents that include

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conclusions made by any prison investigators regarding whether staff used excessive force or

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otherwise violated a prison policy. The Court finds that the investigators’ ultimate conclusions

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have little, if any, relevance to this case because that question is one for the jury and the

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conclusion of the prison factfinder is not relevant and will likely be subject to exclusion in any

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event. Moreover, the Court notes that the Supreme Court’s direction only explicitly applied to

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underlying evidence gathered in the factual investigation, and not to the conclusion of that

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investigation. Based on this Court’s balancing, and taking into account the Supreme Court’s

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direction, the Court finds that the official information privilege shields the conclusions from

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prison investigators regarding whether Defendant violated any prison policy or used excessive

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force against Plaintiff.

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Thus, the Court finds that the documents at pages 9, 30-37, 48, 50-52, and 54-56, may

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be withheld under the official information privilege, and that the rest of the documents shall

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promptly be produced to Plaintiff.

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V.

ORDER

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1. Defendant may withhold the documents at pages 9, 30-37, 48, 50-52, and 54-56.

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The remainder of the documents shall be produced to Plaintiff within fourteen days

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of the date of service of this order.
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2. Defendant may redact confidential identifying information about prison officials, if

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any, including first names, addresses, social security numbers, and similar personal

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information.

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IT IS SO ORDERED.
Dated:

April 2, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

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