Percelle v. Pearson et al

Filing 134

ORDER by Judge Thelton E. Henderson denying 113 Motion for Discovery; granting 124 Motion for Leave to File Excess Pages (tehlc1, COURT STAFF) (Filed on 9/8/2014).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVE DALE PERCELLE,
Plaintiff,

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v.
S. PEARSON, et al.,
Defendants.

Case No. 12-cv-05343-TEH
ORDER DENYING PLAINTIFF'S
MOTION TO MODIFY JULY 28,
2014 ISSUED ORDER ON MOTION
TO MAINTAIN REDACTIONS

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This matter is scheduled for oral argument at 10:00 AM on September 15, 2014.

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United States District Court
Northern District of California

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Having considered the arguments of the parties in the papers submitted, the Court now

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decides Plaintiff’s motion without oral argument, pursuant to Civil Local Rule 7-1(b). For

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the reasons set forth below, the Court DENIES Plaintiff’s motion and VACATES the

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hearing scheduled for September 15, 2014. The Court also GRANTS Plaintiff’s

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administrative motion to file excess pages.

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BACKGROUND

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Plaintiff Steven Dale Percelle (“Percelle”) is a former state prisoner who was

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classified as a gang member while incarcerated and placed in segregated housing for

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approximately fourteen months. He now sues eight California Department of Corrections

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and Rehabilitation (“CDCR”) officials pursuant to 42 U.S.C. § 1983, alleging that his gang

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classification and segregated housing placement was done in retaliation for engaging in

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litigation activity protected by the First Amendment. In the current motion, Percelle seeks

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modification of Chief Magistrate Judge Elizabeth D. Laporte’s Order of July 28, 2014

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(Docket No. 112), which maintained all of Defendants’ redactions to a Gang Validation

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Package in order to protect the identity of a confidential prison informant.

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LEGAL STANDARD
A district court reviews a motion for relief from a nondispositive pretrial order of a

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Magistrate Judge for whether such order is “clearly erroneous or contrary to law.” 28

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U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a).

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The decision whether or not to disclose the identity of a confidential informant

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“calls for balancing the public interest in protecting the flow of information against the

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individual's right to prepare his [case].” Roviaro v. United States, 353 U.S. 53, 62 (1957).

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“For the informants privilege to give way, the party seeking disclosure has the burden of

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showing that its need for the information outweighs the government's interest in

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nondisclosure.” In re Perez, 749 F.3d 849, 858 (9th Cir. 2014).

United States District Court
Northern District of California

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DISCUSSION
Percelle argues that the order of the Magistrate Judge is “clearly erroneous and

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contrary to law” because it precludes him from proving an “essential element of his

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claim,” namely, that the contents of the Gang Validation Report were false and that

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Defendants knew as much. Mot. at 2 (Docket No. 113). However, the Court finds that the

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Magistrate Judge’s determination was not clearly erroneous or contrary to law.

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Percelle correctly identifies Roviaro as the standard for ordering disclosure of a

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confidential informant. 353 U.S. at 62. Although Roviaro concerned an informant in a

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criminal case, id. at 55, its balancing test applies to civil cases as well. See, e.g., In re

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Perez, 749 F.3d at 858 (wage and hour claim); Mitchell v. City of Pittsburg, No. 09-794-

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SI, 2012 WL 92565, at *2 (N.D. Cal. Jan. 11, 2012) (excessive force claim).

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The record demonstrates that the Magistrate Judge appropriately balanced

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Percelle’s interest in obtaining the un-redacted report with the government’s interest in

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protecting the confidentiality of the informant.

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At oral argument, the Magistrate Judge indicated that “there’s a word or two that

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could have not been redacted but it’s not particularly revealing either.” Transcript of Oral

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Argument at 3 (Docket No. 117). The Magistrate Judge considered what Percelle would
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need to prove in his case, and concluded “[the evidence is] relevant. It’s not directly

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absolutely crucially so.” Id. at 4. Later, the Magistrate Judge concluded “It’s not central

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in the sense that the case is dispositive one way or the other,” and that “not having it is not

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crippling to the case but it’s certainly some disadvantage.” Id. at 11. Moreover, even

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though the Magistrate Judge found that the evidence was relevant and would be helpful,

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she also opined that its value would be limited: “there’s nothing that looks like internal

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inconsistencies which should have put the investigator on notice.” Id.

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Regarding the government’s interest, Defendants argued in a joint statement that,
“If released, the redacted information could allow the confidential informant and others to
be identified because the information reveals the informant’s personal information . . .

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United States District Court
Northern District of California

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[which] could put the lives of numerous people at risk.” Joint Discovery Letter Brief at 2

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(Docket No. 94). The Magistrate Judge also heard argument from Defendants at the

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hearing that revealing information about the confidential informant’s identity would put

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the informant’s life at risk. Id. at 8.

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The Magistrate Judge issued the order maintaining the redactions “[u]pon

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consideration of all the briefing submitted to the court, oral argument, and in-camera

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review of the Gang Validation Package,” and found that “Defendants’ redactions to the

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Gang Validation Package are proper because they are necessary to safeguard the identity

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of the confidential informant and other individuals referenced in the document.” Order on

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Motion to Retain Redactions at 1 (Docket No. 112). The order itself, and the transcript of

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the hearing to which it refers, clearly indicate that the Magistrate Judge balanced the

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public’s interest in protecting the informant with Percelle’s interest in using the un-

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redacted report for his case, as the law requires. The order was not contrary to law.

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Moreover, after performing its own in-camera review of the un-redacted report, the

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Court concludes that the balance of interests struck by the Magistrate Judge was not clearly

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erroneous. While maintaining the redactions will likely be “some disadvantage” to

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Percelle, it was not clear error to determine that the redactions are “not crippling to the

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case,” Transcript at 11, or that “the disclosure of this information could jeopardize the
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safety of these individuals.” Order on Motion to Retain Redactions at 1. The Court

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therefore will not disturb the Magistrate Judge’s decision to maintain all of the subject

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redactions.

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PLAINTIFF’S ADMINISTRATIVE MOTION TO FILE EXCESS PAGES
After reviewing the papers submitted in support of Plaintiff’s Administrative

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Motion to Allow Filing of Motion in Excess of 5 Pages, the Court finds that good cause

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exists for Defendants’ motion. The Court GRANTS Plaintiff’s motion as follows:

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The Court accepts and has considered the pleadings filed on August 11, 2014 in
support of Plaintiff’s Rule 59 Motion notwithstanding the filed motion being in excess of

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United States District Court
Northern District of California

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the page limitations of Civil Local Rule 72-2.

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However, the Court cautions Plaintiff that further rule violations will not be

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tolerated. The Court points to the fact that Plaintiff violated Local Rule 7 in a previous

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filing. See Order re: Dkts. 78, 90, 94, & 97 at 2 (Docket No. 106). Any additional rule

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violations may result in summary denial of the related motions and monetary sanctions.

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CONCLUSION
The Court GRANTS Plaintiff’s administrative motion and DENIES Plaintiff’s

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motion to modify the Magistrate Judge’s order. The Court VACATES the hearing

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scheduled for 10:00 AM on September 15, 2014. This case is set for a Case Management

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Conference at 1:30 PM on September 15, 2014.

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IT IS SO ORDERED.

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Dated: 09/08/2014

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THELTON E. HENDERSON
United States District Judge

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