Barry v. Felker et al

Filing 50

ORDER signed by Magistrate Judge George W. Foley on 5/4/11 ORDERING dfts Bishop and Albonico's motion for reconsideration 45 is GRANTED; dfts confidentiality objections to Pltf's interrogatory nos. 2, 4, and 6-7 are upheld. Dfts do not ne ed to respond further to these discovery requests; dfts shall provide an unredacted copy of the incident report for the 7/23/07 incident in facility C to the Court for in camera review on or before 5/23/11 in order for the Court to rule on dfts relevance objection to disclosure. (Carlos, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY DEMOND BARRY,

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Plaintiff,
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vs.
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T. FELKER, et al.,
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Defendants. )
__________________________________________)

Case No. 2:08-cv-01722-PMP-GWF
ORDER
Motion for Reconsideration (#45)

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This matter is before the Court on Defendants Bishop and Albonico’s Notice of Motion for

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Reconsideration and Memorandum and Points of Authorities in Support of Their Motion for

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Reconsideration (#45), filed January 13, 2011.

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BACKGROUND
In his Complaint (#1), Plaintiff Timothy Barry alleges that he was subjected to cruel and

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unusual punishment by Defendants in violation of his Eighth Amendment rights. Plaintiff alleges

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that on July 23, 2007, the correctional officers at the High Desert State Prison (“HDSP”) demanded

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that Plaintiff and other inmates submit to a strip search. After refusing to be strip searched,

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Plaintiff alleges that he was handcuffed and placed on his knees by a correctional officer acting

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under the direction of Defendants J. Bishop and N. Albonico. Plaintiff complained that the asphalt

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was too hot after ten (10) minutes of kneeling. Plaintiff states that he could no longer take the pain

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and fell over. The correctional officers again placed him on his knees and left him in that position

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for almost an hour. Plaintiff alleges that RN Flaherty examined Plaintiff and told Plaintiff that he

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had second degree burns on his knees.

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On August 31, 2010, Plaintiff filed a motion to compel, requesting that the Court order

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Defendants to further respond to interrogatories and requests for production that Plaintiff served on

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June 16, 2010. (#36). Plaintiff’s interrogatories sought policies and procedures that were relevant

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to the incident where Plaintiff was injured at HDSP. (Id.) Plaintiff’s requests for production asked

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for production of incident reports and medical reports of injury or unusual occurrences authored by

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prison staff on the date of Plaintiff’s injury, July 23, 2007. (Id.) Defendants responded that the

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motion to compel should be denied because they properly responded to Plaintiff’s discovery request

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by raising valid objections to many of Plaintiff’s discovery requests. (#38). They argued that the

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Court should uphold Defendants’ objections to the interrogatories because Plaintiff was requesting

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prison operational policies and procedures from the HDSP Department Operation Manual and

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Operational Procedures and that these materials were confidential. (Id.) Specifically, the

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defendants argued that disclosure of the materials “would compromise the safety and security of the

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institution.” (Id.) In opposition to the request that they supplement their responses to Plaintiff’s

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requests for production, the defendants argued that the incident report contained no relevant

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information and that the privacy interests of other prisoners prevented disclosure as the incident

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report included information about other prisoners. (Id.)

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On December 14, 2010, the Court issued an order granting Plaintiff’s motion to compel in

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part and overruling Defendants’ confidentiality objections to Plaintiff’s interrogatory nos. 2, 4, and

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6-7. (#43 at 8). In doing so, the Court found that the defendants had failed to state any specific

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manner in which the prison would be compromised by providing Plaintiff with sections of the

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HDSP Department Operation Manual and Operational Procedures. (#43). Instead, the opposition

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and attached affidavit only recited the regulatory standard that “providing inmates with information

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contained in the specified sections would compromise the safety and security of the institution.”

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(Id.) The Court held that mere recitation of the regulatory language without any further explanation

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is not enough for the Court to find the materials at issue to be confidential and ordered Defendant

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Bishop to produce the sections of the HDSP Department Operation Manual and Operational

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Procedures relevant to Plaintiff’s interrogatory nos. 2, 4, and 6-7 and requests for production nos. 2

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and 4. (#43) (citing Jacobs v. Scribner, 2009 WL 3157533, *3-*4 (E.D.Cal. Sept. 25, 2009)

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(partially overruling the defendants’ objection to producing confidential sections of the Department

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Operational Manual because state agents may not refuse to respond to discovery requests by raising

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the allegation that a response would compromise the safety and security of the institution). The
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Court’s order also overruled Defendants’ privacy objection to request for production no. 2. (#43).1

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Recognizing the privacy concerns raised by the prison, the Court ordered that the incident reports

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should be produced but that the name of the inmates should be redacted. (Id.)

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In the present motion, Defendants request that the Court reconsider and vacate its December

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14, 2010 order (#43) compelling Defendant Bishop to substantively respond to Plaintiff’s discovery

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requests.

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DISCUSSION

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While the Federal Rules of Civil Procedure do not explicitly recognize a petition for

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rehearing or motion to reconsider, this court has the inherent power to revise, correct, and alter

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interlocutory orders at any time prior to entry of a final judgment. See Sch. Dist. No. 5 v. Lundgren,

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259 F.2d 101, 105 (9th Cir. 1958); Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72

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(7th Cir. 2006). This authority is governed by the doctrine that a court will generally not reexamine

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an issue previously decided by the same or higher court in the same case. Lucas Auto. Eng'g, Inc.

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v. Bridgestone/Firestone, Inc., 275 F.3d 762, 766 (9th Cir. 2001); United States v. Cuddy, 147 F.3d

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1111, 1114 (9th Cir. 1998). However, a court has discretion to depart from the prior order when

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(1) the first decision was clearly erroneous, (2) there has been an intervening change of law, (3) the

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evidence on remand is substantially different, (4) other changed circumstances exist, or (5) a

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manifest injustice would otherwise result. Cuddy, 147 F.3d at 1114. In addition, the local rules

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require that a petitioner seeking reconsideration must also demonstrate what new or different facts

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of circumstances are claimed to exist which were not shown in the prior motion and why the facts

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or circumstances were not shown at the time of the prior motion. LR 230(j)(3)-(4).

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1.

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Defendants argue that the Court should vacate its prior order because there is sufficient

Confidentiality Objection to Interrogatories

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evidence that providing inmates with information contained in the specified sections of the HDSP

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Department Operation Manual and Operational Procedures would compromise the safety and

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The Court upheld, in part, Defendants’ objection to the overbreadth of Plaintiff’s requests
for production and limited the scope of records sought by Plaintiff. (#43).
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security of the institution. (#45). In support of this argument, Defendants attach the declaration of

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R. Dreith, the Litigation Coordinator for the California Department of Corrections and

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Rehabilitation. (#45-2 at 1-4). Dreith states that the Operational Procedure at issue, no. 102,

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provides detailed instructions for which HDSP staff should respond in the event of a major incident

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at the prison, as well as where they should go and how they should specifically act. (#45-2 at 1-2).

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In addition, the declaration states that the sections at issue from the HDSP Department Operation

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Manual detail the procedures for reporting and investigating incidents where force was used,

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procedures for crime scene preservation and instructions for which staff should respond to an

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incident and when. (#45-2 at 2). Dreith states that these procedures are confidential because

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allowing an inmate to know the routines of prison staff could allow the inmate to create an unsafe

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condition or use the information to thwart an investigation. (Id.)

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In further support of their motion to reconsider its order compelling further response to

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Plaintiff’s interrogatories, Defendants cite that previous courts have upheld the confidentiality

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objection to producing the HDSP Operational Procedures because they contain “critical prison

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security information that, if disclosed, could endanger prison staff and compromise tactical

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responses to prison alarms.” (#45-1) (citing Ibanez v. Miller, 2009 US Dist LEXIS 98394 (E.D.CA

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Oct. 22, 2009)). In Ibanez, the court considered objections by the prison to the release of

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Operational Procedure no. 102. 2009 US Dist LEXIS 98394. Based on the declaration of an

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associate warden at the prison, the court upheld the prison’s confidentiality objections and held that

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any prejudice to the plaintiff from non-disclosure was outweighed by the probable harm from

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disclosure and that the significant gravity of the harm. Id. at *6-*7.

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The Court grants reconsideration of its December 14, 2010 order in light of information

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provided in the declaration of Litigation Coordinator R. Dreith and the court’s decision in Ibanez v.

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Miller, 2009 US Dist LEXIS 98394. Dreith’s declaration establishes that the material at issue in

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the HDSP Department Operation Manual and Operational Procedures contains critical prison

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security information that, if disclosed, could endanger prison staff and compromise tactical

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responses to prison alarms. Although Defendants improperly failed to support their initial assertion

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of a confidentiality objection with specific details as to how release of the information would
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threaten the safety and security of the institution, the Court finds the probable harm from disclosure

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and the significant gravity of that harm demonstrates that manifest injustice would result if the

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Court did not revisit its prior order.

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The harm likely to result from disclosure is adequately addressed in Dreith’s declaration and

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it appears probable that release of the information would, indeed, compromise tactical responses to

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disturbances, prison investigations of incidents and other prison security measures. Moreover, the

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gravity of harm from such a compromise includes endangering the safety of correctional officers

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and other prison staff, as well as other inmates. While the procedures at issue in the HDSP

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Department Operation Manual and Operational Procedures may be relevant to Plaintiff’s claims,

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upholding Defendants’ confidentiality objection and denying his request for disclosure will not

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prevent Plaintiff from presenting his case. Therefore, the Court finds that Defendants’

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confidentiality objections as to interrogatory nos. 2, 4 and 6-7 are upheld because the probable

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harm and significant level of harm that could result from disclosure outweighs any prejudice to

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Plaintiff resulting from non-disclosure.

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2.

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Defendants also argue that the Court should vacate its prior order because the incident

Relevancy Objection to Request for Production No. 2

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report sought in request for production no. 2 does not contain information relevant to Plaintiff’s

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claims that he suffered injury due to prison staff handcuffing him and placing him on his knees on

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severely hot concrete. (#45-1 at 7-9). According to the declaration, the incident report only

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contains one sentence discussing Plaintiff and merely states that he was present in the yard at the

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time of the incident. (#45-2). Dreith further states that the remainder of the incident report

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includes information regarding the stabbing of an inmate, details about the apprehension of the

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suspects and death of the victim, as well as medical reports of injury for the suspects and the victim

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of the stabbing. (#45-2). As a result, Defendants argue that the incident report does not contain

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relevant information and they should not be required to produce it.

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Based on the argument that the incident report does not contain any relevant information

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and the Court’s initial determination of relevancy was clearly erroneous, the Court will grant the

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request to reconsider the order to disclose the incident report. Accepting the representations of
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Defendants that the incident report only contains one sentence about Plaintiff, however, it is still

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not clear to the Court that a copy of the incident report does not contain relevant information.

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Defendants state that the report includes medical reports of injury for the suspects. (#45-2 at 2).

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They do not, however, disclose the nature of the suspects’ injuries. If the injuries suffered by the

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suspects include burns resulting from exposed skin staying in contact with hot concrete for a

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prolonged period, the incident report would be relevant to Plaintiff’s claims. The report could

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support Plaintiff’s allegation that the concrete was hot enough to burn skin and his allegation that

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his burns were the result of prolonged contact with the concrete on the day in question. Because

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the Court is unable to determine the relevancy of the incident report based on Defendants’ motion

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and the supporting declaration, the Court will order that an unredacted version of the report be

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submitted to the Court for in camera review. Accordingly,

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IT IS HEREBY ORDERED that Defendants Bishop and Albonico’s Notice of Motion for

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Reconsideration and Memorandum and Points of Authorities in Support of Their Motion for

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Reconsideration (#45) is granted in part as follows:

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Defendants’ confidentiality objections to Plaintiff’s interrogatory nos. 2, 4, and 6-7

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are upheld. Defendants do not need to respond further to these discovery requests;

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and

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3.

Defendants shall provide an unredacted copy of the incident report for the July 23,

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2007 incident in facility C to the Court for in camera review on or before May 23,

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2011 in order for the Court to rule on Defendants’ relevance objection to disclosure.

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DATED this 4th day of May, 2011.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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