Espinoza v. Ornoski

Filing 303

ORDER signed by Magistrate Judge Deborah Barnes on 03/14/2023 GRANTING 301 Request to Seal. (Rodriguez, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTONIO ESPINOZA,

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No. 2:94-cv-1665 KJM DB

Petitioner,
v.

SEALED ORDER

WARDEN, San Quentin State Prison,
Respondent.

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Petitioner is a state prisoner proceeding through counsel with a petition for a writ of

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habeas corpus under 28 U.S.C. § 2254. Before the court are petitioner’s counsel’s request to file

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a motion and related documents under seal, petitioner’s counsel’s motion to compel CDCR to

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provide counsel with information regarding petitioner’s health, and petitioner’s request for an

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extension of time to file a joint status report. This court addresses the latter request in a publicly-

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filed order. Below, this court addresses petitioner’s counsel’s request to file documents under

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seal and motion to compel CDCR to provide information.

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This court has two concerns about petitioner’s counsel’s filings. First, while petitioner’s

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counsel (hereafter “counsel”) identifies only two requests, it appears from the submissions that

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counsel is making three. To summarize, they are: (1) a request to file under seal; (2) a motion to

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compel CDCR to provide counsel with health and other information upon counsel’s request; and

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(3) a motion for a protective order to prevent respondent from having access to any of the
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documents provided to counsel by CDCR. Counsel shall confirm with the court that these are the

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three things they are seeking.
With respect to counsel’s request to file under seal, it appears that some, if not all, of the

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information regarding petitioner’s health referenced in counsel’s motion has been made public.

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(See ECF No. 280-6 at 59; ECF No. 292-1). Nonetheless, this court recognizes that petitioner is

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entitled to a level of privacy over his health information and will issue a separate, public order

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directing the Clerk to file the request and motions under seal.
This court’s second concern is that counsel seeks to have both his motion to compel and

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his motion for a protective order heard ex parte. Counsel appears to argue that ex parte

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consideration is necessary because the motions contain private information about petitioner’s

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health and information protected by the attorney/client privilege or work product. As stated

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above, it appears that the information provided regarding petitioner’s health is already available

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to respondent. If that is not the case, counsel shall so inform the court.

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With respect to the privileges, counsel does describe some of the work done to attempt to

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determine the status of petitioner’s health and to attempt to communicate with him. Whether or

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not that information is privileged or protected, this court does not find it necessary to counsel’s

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motions and finds it could be omitted. It is sufficient that counsel needs information about

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petitioner’s health and location in order to communicate with him. This court finds nothing

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necessarily confidential about counsel’s need to communicate with petitioner. In fact, respondent

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could certainly be aware that counsel requested petitioner’s health records from a prison officer

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and that the officer told counsel a signed HIPAA release was necessary. And, should the court

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order the provision of information, respondent would likely be aware that prison officers are

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providing that information based on the court’s order.

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This court does not find any reason, at this time, to enter an order compelling the

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provision of information without input from respondent. This is particularly true because counsel

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appears to be asking this court to find petitioner is incompetent to execute a release of records.

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Counsel does not explain why respondent should have no role in consideration of that issue.

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The same is true for counsel’s motion for a protective order. Regardless of the motion’s

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merit, this court finds that it requires a response from respondent. Respondent should be

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permitted to provide their position about what, if any, of the information counsel seeks

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respondent already has access to or should have access to and, if access is limited, the procedures

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for respondent to seek access.

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This court requires additional information from counsel addressing the issues raised

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herein. After receipt of that information, this court will determine whether or not it will consider

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counsel’s motions on an ex parte basis.

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Accordingly, IT IS HEREBY ORDERED that:
1. Within thirty days of the filed date of this order, petitioner’s counsel shall file under

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seal a supplement to their motions to compel and for a protective order to address the issues

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raised by the court above.

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2. The Clerk of the Court is directed to file this order under seal and to serve it only on

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counsel for petitioner. The Clerk shall identify the order in the docket as an Order for

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Supplemental Information re Sealed Motion.

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Dated: March 14, 2023

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DLB:9/DB prisoner inbox/capital/espinoza.mot to seal 2

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