Ind v. Colorado Department of Corrections et al

Filing 230

ORDER This matter is before the Court on Plaintiffs oral Motion to Compel production by Defendant Colorado Department of Corrections (CDOC) of certain documents pertaining to Plaintiff, who is currently incarcerated at the Limon Correctional Facility in Limon, Colorado. Plaintiffs oral Motion to Compel Production of Documents is denied, by Magistrate Judge Kristen L. Mix on 8/30/2013. (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-00537-WJM-KLM
JACOB IND,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
MARY NELL MCCORMICK, and
UNKNOWN EMPLOYEES OF CSP AND CDOC,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s oral Motion to Compel production by
Defendant Colorado Department of Corrections (“CDOC”) of certain documents pertaining
to Plaintiff, who is currently incarcerated at the Limon Correctional Facility in Limon,
Colorado (the “Motion”). At the time of filing of this lawsuit, Plaintiff was incarcerated at
Colorado State Penitentiary (“CSP”). Plaintiff seeks production of documents relating to
review of the CSP Classification Committee’s recommendation of Plaintiff “for progressive
movement from CSP” in 1997 (the “CSP Movement Review Documents”), and an
unredacted version of a document summarizing Plaintiff’s alleged gang affiliations, which
is titled “Query Gang Records” and identified by CDOC as a “QTGANG query” (the
“QTGANG Query”).

Defendant opposes both requests.

The Court has reviewed

Defendant’s Response to Motion to Compel [Docket No. 215; filed July 8, 2013]

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(“Defendant’s Response”), Plaintiff’s Reply in Support of Oral Motion to Compel
[Docket No. 225; filed July 19, 2013] (“Plaintiff’s Reply”), and the disputed documents in
camera and is fully advised in the premises. For the reasons set forth below, the Motion
is DENIED.
I. Background
Plaintiff identifies himself as a “Christian Separatist.”1 He asserts that CDOC’s
policies during his incarceration at CSP between September 7, 2007 and December 3,
2009, which banned certain correspondence courses, limited the number of books and
magazines an inmate can possess, and allowed prison officials to identify him as a member
of a security threat group, violated his First Amendment right to practice his religion and his
rights pursuant to the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §
2000cc-1 et seq. (“RLUIPA”). Defendant CDOC asserts that its policies do not and did not
substantially burden Plaintiff’s religious exercise, and that they further a compelling
government interest. CDOC further denies that Plaintiff was identified as a security threat
group member or placed in administrative segregation because of, or in retaliation for, his
religious beliefs. [# 204] at 3-4.
II. Analysis
A.

The CSP Movement Review Documents
Defendant objects to production of the Movement Review Documents on the

grounds of relevance. As indicated above, Plaintiff’s claims relate to his incarceration at

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Christian Separatists have been described as “a religious group that allows only Caucasians to be
members and which believes that Caucasians are uniquely blessed by God and must separate themselves
from all non-Caucasians.” Murphy v. Missouri Dept. of Corr., 506 F.3d 1111, 1114 (8th Cir. 2007).

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CSP between September 17, 2007 and December 3, 2009. [#204] at 3. Defendant asserts
that documents relating to review of the Classification Committee’s recommendation of
Plaintiff “for progressive movement” in 1997 are not relevant to any party’s claim or defense
and are not reasonably calculated to lead to the discovery of admissible evidence.
The Court has reviewed the CSP Movement Review Documents in camera. The
documents are dated between June 26, 1997 and August 12, 1997. They contain no
reference to Plaintiff’s religion whatsoever, and explain the reasons for denial of the
Committee’s recommendation “for progressive movement [of Mr. Ind] from CSP” in terms
of his disciplinary and gang history and behavior with prison staff. Plaintiff’s claims make
no reference to his incarceration at CSP in 1997 or any policies followed by the prison then.
Moreover, on their face, the CSP Movement Review Documents lack any relationship to
Mr. Ind’s religion, CSP’s policies regarding practice of Mr. Ind’s religion, or any other matter
that could reasonably lead to the discovery of admissible evidence in this case.
Accordingly, they are not relevant here. Fed. R. Civ. P. 26(b)(1); Simpson v. Univ. of Colo.,
220 F.R.D. 354, 359 (D. Colo. 2004). The Motion is therefore denied regarding the CSP
Movement Review Documents.
B.

The QTGANG Query
As indicated above, Defendant CDOC produced a redacted version of the QTGANG

Query during the course of discovery in this case and designated it as confidential and for
attorneys’ eyes only pursuant to the Protective Order [#193]. CDOC contends that the
document “contains confidential, security-sensitive information and is subject to the official
information privilege.” CDOC further contends that Plaintiff has failed to demonstrate a

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need for the unredacted document that outweighs the government’s need to protect the
information. Defendant’s Response [#215] at 2.
Plaintiff contends that Defendant uses the QTGANG Query to identify him as a
member of a Security Threat Group (“STG”). He further alleges that “Defendants have
found a creative way to use [his] religious beliefs to identify him as a member of” an STG.
In support of his request for an unredacted version, he cites his “critical need” for the
unredacted document and available security restrictions, claiming that his “interest in
production outweighs Defendants’ interests in withholding it.” Plaintiff’s Reply [#225] at 1-2.
1.

The Nature of the Document in Dispute

According to Tino C. Herrera, a Criminal Investigator II employed by CDOC, a
QTGANG Query is a document which reflects information gathered about an offender as
well as the calculation made by CDOC from that information for the purpose of identifying
him as “security threat group affiliated.” Defendant’s Response at Exh. B, ¶ 14. Mr.
Herrera explains that page 1 of the document “includes the offender’s STG status, date of
confirmation, raw intelligence notes, and other summary information. Page 2 shows the
objective point-based instrument utilized to identify an offender as security threat group
affiliated. . . . Pages 3 through 8 include the data used to complete the instrument.” Id.
Mr. Herrara states that a QTGANG Query is “among the most sensitive records in
the department” because it discloses “intelligence and the methodology and strategies used
to gather intelligence.” Id. at ¶ 12. Mr. Herrera opines that if such information “fell into the
wrong hands, [it would] help offenders avoid detection, paving the way for them to fly under
the proverbial radar and perpetuate actions that disrupt facility operations, including
criminal and violent offenses.” Id.
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Comparison of the redacted version of the QTGANG Query to the unredacted
version reveals that the redacted information is limited to the “raw intelligence notes”
referenced by Mr. Herrera, the numbers used in CDOC’s point system to classify offenders
as members of STGs, and Mr. Ind’s total point score. None of the redacted information
makes any reference to Mr. Ind’s religion. It is important to note the information available
to Plaintiff’s counsel on the redacted version of the document which has been produced.
The redacted version discloses the identity of Mr. Ind’s “gang” and “monikers,” describes
his self-identification as a member of the “Christian Identity” religion, his possession of
drawings of lightning bolts and swastikas, his written admission of being a “Nazi,” his
written admissions of being a “White Supremacist,” his possession of “STG materials while
incarcerated including drawings, letters, and weapons,” and, most importantly, reveals the
criteria used to evaluate his STG status, without revealing his overall point score.
Accordingly, Plaintiff’s counsel has at her disposal all information in the QTGANG Query
except the intelligence notes, the numerals assigned to the point system, and Mr. Ind’s total
score under the point system.
2.

The Official Information Privilege

When federal law governs the rule of decision, federal common law governs the
existence of a privilege. See Cutting v. United States, No. 07-cv-02053-REB-MEH, 2008
WL 1775278, at *2 (D. Colo. Apr. 14, 2008). This case was brought pursuant to the First
Amendment of the United States Constitution and RLUIPA, a federal statute. Therefore,
federal common law governs whether the QTGANG Query is privileged. See, e.g., Everitt
v. Brezzel, 750 F. Supp. 1063, 1066 (D. Colo. 1990); Hutton v. City of Martinez, 219 F.R.D.
164, 167 (N.D. Cal. 2003); Hancock v. Hobbs, 967 F.2d 462, 467 (11th Cir. 1992).
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The official information privilege has been described as “the government’s privilege
to prevent the disclosure of information whose disclosure would be contrary to the public
interest.” Frankenhauser v. Rizzo, 59 F.R.D. 339, 342 (E.D. Pa. 1973). The privilege
extends to security considerations applicable to correctional facilities. Whitington v. Sokol,
No. 06-cv-01245-EWN-CBS, 2008 WL 435277, at *1-2 (D. Colo. Feb. 14, 2008). The
federal courts have long recognized the important goal of protecting prison security, as well
as a broad policy against Court interference in matters which affect those concerns. See,
e.g., Thornburg v. Abbott, 490 U.S. 401, 415, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989);
Fourhorn v. City & County of Denver, 261 F.R.D. 564, 569 (D. Colo. 2009). Hence
application of the privilege to documents which impact prison security is proper.
However, the official information privilege is not absolute. The Court must weigh
“the interests of the party seeking discovery . . . against the interests of the government
entity asserting the privilege.” Ulibarri v. City & Cnty. of Denver, 07-cv-01814-WDM-MJW,
2009 WL 260945, at *3 (D. Colo. Feb. 4, 2009) (citing Whitington, 2008 WL 435277, at *1).
Plaintiff contends that he needs the QTGANG Query because “none of the information
Defendants have redacted from [it] is available to [his] attorneys through . . . other
discovery.” Plaintiff’s Reply [#225] at 3. He also contends that Defendant CDOC may not
withhold the information on the basis that it is not relevant, as CDOC is not entitled to make
that determination. Id. at 3-4.
CDOC asserts, as recounted by Mr. Herrera in his affidavit, that “the information
contained in the unredacted QTGANG Query is equivalent to a customized ‘how to’ lesson
plan on the specific measures an offender should take to subvert security threat groupdetection methods, and, irrespective of a protective order, increased distribution and
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dissemination of this information increases the likelihood that the information will be
compromised and misappropriated.” Defendant’s Response [#215] at 6.
In weighing Plaintiff’s interests in obtaining the limited information from the QTGANG
Query that has been withheld against the Department of Corrections’ interest in withholding
it, the Court’s concludes that CDOC’s interest is stronger. Although Plaintiff may not be
able to obtain the precise information withheld from other discovery, the purpose of his
request for production of the QTGANG Query is to discern the reasons for his STG
classification, and the information disclosed in the redacted document makes those
reasons clear. Moreover, although Plaintiff professes to have an interest in the withheld
information because he wants to prevent CDOC from making arbitrary decisions about the
relevance of information sought, this argument is disingenuous. Plaintiff took all necessary
steps to ensure that CDOC would not be permitted to make a unilateral relevance
determination by filing the Motion. Adjudication of the Motion allowed Plaintiff ample
opportunity to make all arguments regarding relevance of the document and to obtain an
independent adjudication from the Court.
In contrast to Plaintiff’s interests in obtaining the document, CDOC’s interest in
withholding it is strong, well-recognized and powerful.

Prison discipline and safety

necessarily depend in part on identification of inmates’ affiliations with each other and with
organized groups. Disclosure of the information sought here would compromise the
process by which CDOC obtains that information and its future use. The Colorado
Department of Correction’s interest in protecting that process – now and in the future – is
not outweighed by Mr. Ind’s interests here.
III. Conclusion
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For the reasons set forth above, Plaintiff’s oral Motion to Compel Production of
Documents is denied.
Dated:

August 30, 2013

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