Sutherland v. Herrmann et al

Filing 85

ORDER signed by Magistrate Judge Dale A. Drozd on 1/17/12 ordering within 15 days from the date of this order defendants shall provide the following documents to plaintiff: a)The memorandum dated 05/15/08 (page 2 of the document submitted for in came ra review), redacted to omit the paragraph identified by the number 1 and the last sentence of the document directly above the signature; and b) The 5 page memorandum dated 05/23/08 (pages 5-9) and a second copy of the first page of that memorandum ( page 10) reflecting a change in the first sentence of the findings at the bottom of the page. Within 15 days from the date of this order defendants shall clarify in writing: a) Whether the document described in the last typewritten sentence on the u pdated memorandum identified as page 4 of the document submitted for in camera review and the second of 2 documents described in the handwritten paragraph on that page have been provided to or are otherwise available to plaintiff; and b) Whether pages 21, 23,25 and 26 of the document submitted for in camera review have been provided to plaintiff. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM YOUNG SUTHERLAND,

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Plaintiff,

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No. CIV S-09-2391 WBS DAD P

vs.
S. HERRMANN, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. By order filed July 21, 2011, defendants were directed to submit for in camera

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review all confidential documents responsive to Request No. 9 of plaintiff’s first request for

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production of documents. In response to that order, defendants submitted a twenty-eight page

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document identified in their notice of submission as a Confidential Supplement to Appeal

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Inquiry of Appeal Log No. SAC-C-08-00705. See Defendants’ Notice of Submission of Sealed

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Document for In Camera Review Pursuant to Court Order (Doc. No. 70), filed July 25, 2011, at

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1. In their notice of submission defendants request that if the court determines that the document

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is subject to disclosure they be given “an opportunity to seek a protective order restricting

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Plaintiff’s access to the document and redacting information that could jeopardize prison safety.”

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Id. at 2.
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By order filed December 9, 2011, defendants were directed to supplement their

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July 25, 2011 submission by submitting for in camera review a brief addressing with specificity

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which portions of the document in question they contend are confidential, identifying any part of

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the document that has already been provided to plaintiff or would otherwise be available to him,

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and identifying any part of the document that contains information that has or will be used in the

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defense of this action, including in defendants’ pending motion for summary judgment. In

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addition, defendants were directed to identify with specificity which part(s) of the document they

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contend should be redacted if some or all of the document were to be provided to plaintiff and to

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include with their brief a proposed protective order. Defendants have now submitted the required

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brief.

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In their brief, defendants make no argument with respect to the first page of the

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document submitted for in camera review.1 It does not appear to the court that page one of the

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document is relevant to the substance of plaintiff’s claims. Therefore, defendants will not be

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required to produce that page to plaintiff.

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Defendants contend that memorandums dated May 15, 2008 and May 28, 2008

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(pages 2 and 3) are protected by the deliberative process privilege because they reflect

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communications between government officials concerning whether there is a need to develop a

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particular policy. The policy under discussion in the May 28, 2008 memorandum is not relevant

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to the claims at bar. For that reason, defendants will not be required to produce the

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memorandum dated May 28, 2008 (page 3) to plaintiff. However, the memorandum dated May

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15, 2008 (page 2) contains both information concerning the policy discussion and information

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that may be relevant to the claims at bar. For that reasons, defendants will be directed to provide

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a copy of that memorandum, redacted to omit the paragraph identified by the number 1 and the

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last sentence of the document directly above the signature, to plaintiff.

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Hereafter pages of the document submitted for in camera review will be identified in
parentheses.
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Defendants contend that an undated Memorandum (page 4) is protected by the

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deliberative process privilege because it contains communications between prison officials

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concerning the processing of plaintiff’s complaint and does not go to the substance of plaintiff’s

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allegations in this civil action. Defendants shall forthwith clarify whether the document

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described in the last typewritten sentence on that page and the second of two documents

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described in the handwritten paragraph on that page have been provided to or are otherwise

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available to plaintiff.2 Nothing in the rest of the document is relevant to the substance of

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plaintiff’s claims and defendants will therefore not be required to produce this document.

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Defendants have withdrawn their claim of confidentiality with respect to a five

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page memorandum dated May 23, 2008, and a second copy of the first page of that memorandum

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reflecting a change in the first sentence of the findings at the bottom of the page. Accordingly,

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defendants shall provide those six pages to plaintiff forthwith. Defendants also represent that a

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memorandum dated May 22, 2008 (pages 11-12) has already been provided to plaintiff.

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Defendants contend that interoffice notes dated April 1, 2008 and March 28,

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2008, and a Staff Complaint Chronological Tracking Worksheet (pages 13-15) are all protected

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by the deliberative process privilege because they reflect communications between prison

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officials concerning the processing of plaintiff’s complaint and do not go to the substance of

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plaintiff’s allegations. The three pages in question contain no information relevant to the

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substance of plaintiff’s claims. Accordingly, defendants will not be required to produce these

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pages to plaintiff.

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It appears that the document identified in that paragraph as a 7219, is the medical report
dated March 3, 2008 (page 18), which defendants represent in their brief has already been
provided to plaintiff.
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Defendants represent that the inmate appeal Log No. 08-0705 (pages 16-17) and a
medical report dated March 3, 2008 (pages 18-19) have already been provided to plaintiff.

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Finally, defendants contend that the advisements of rights given to the four

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defendants in this action (pages 20, 22, 24, and 27) are covered by the official information

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privilege. None of those pages contain information relevant to the substance of plaintiff’s

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claims. Therefore, defendants will not be required to produce those pages to plaintiff.

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Defendants will, however, be required to inform the court whether pages 21, 23, 25 and 26,

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which are not addressed in their brief, have already been provided to plaintiff and, if not, whether

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there is any assertion of privilege with respect to those documents as well as the basis therefore.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Within fifteen days from the date of this order defendants shall provide the

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following documents to plaintiff:

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a. The memorandum dated May 15, 2008 (page 2 of the document

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submitted for in camera review), redacted to omit the paragraph identified by the number 1 and

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the last sentence of the document directly above the signature; and

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b. The five page memorandum dated May 23, 2008 (pages 5-9), and a

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second copy of the first page of that memorandum (page 10) reflecting a change in the first

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sentence of the findings at the bottom of the page.

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2. Within fifteen days from the date of this order defendants shall clarify in
writing:

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a. Whether the document described in the last typewritten sentence on the

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undated memorandum identified as page 4 of the document submitted for in camera review and

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the second of two documents described in the handwritten paragraph on that page have been

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provided to or are otherwise available to plaintiff; and

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b. Whether pages 21, 23, 25 and 26 of the document submitted for in

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camera review have been provided to plaintiff.

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DATED: January 17, 2012.

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DAD:12
suth2391.dis3

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