Gambina v. Federal Bureau of Prisons et al

Filing 113

ORDER granting Plaintiff's Oral Motion to Compel Response to Request for Production of No. 2. The Clerk shall change the restriction level of the documents submitted at Docket No. 111 to Level 1 pursuant to D.C.COLO.LCivR 7.2B.5. By Magistrate Judge Kristen L. Mix on 09/12/2012. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02376-MSK-KLM
RALPH GAMBINA,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, sued in its official capacity;
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s oral Motion to Compel Response to
Request for Production No. 2 (the “Motion”). The Court held a hearing regarding the
Motion on April 17, 2012. Plaintiff submitted a brief in support of the Motion on April 24,
2012 [Docket No. 90]. Defendant submitted a brief in opposition to the Motion on April 24,
2012 [Docket No. 89]. For the reasons set forth below, the Motion is GRANTED.
I. Background
Plaintiff Ralph Gambina (“Plaintiff” or “Mr. Gambina”) is incarcerated at the United
States Penitentiary Administrative Maximum (“ADX”) in Florence, Colorado. He alleges
that he has remained in “solitary confinement” for more than eighteen years, and that
Defendant has “continuously and systematically deprived [him] of his basic human needs
including social contact and environmental and sensory stimulation, in an arbitrary and
capricious manner, with no legitimate penological justification.” Complaint [#1] at 2. As a

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result of the District Judge’s ruling on a partially dispositive motion, Plaintiff has two
remaining claims which seek declaratory and injunctive relief against the Defendant Bureau
of Prisons (“BOP”) for alleged deprivation of his Fifth Amendment liberty interest in
procedural due process and violation of his Eighth Amendment right to be free from cruel
and unusual punishment. Order [#48] at 24-25.1
The conditions of confinement at ADX are a frequent subject of prisoner litigation.
As explained by the Tenth Circuit Court of Appeals:
ADX is the most restrictive and secure prison operated by the BOP. As the
only facility of its kind in the federal system, it is reserved for inmates who
require ‘the highest custody level that can be assigned to an inmate.’
Prisoners housed in the general population unit at ADX spend twenty-three
hours a day confined to their cells. The typical cell at ADX measures eightyseven square feet and contains a bed, desk, sink, toilet and shower. Inmates
take their meals alone in their cells. Although BOP policy provides for ten
hours of recreation per week, recreation is frequently cancelled due to staff
shortages, mass shakedowns, or adverse weather.
Rezaq v. Nalley, 677 F.3d 1001, 1005 (10th Cir. 2012).
As to his own circumstances of confinement at ADX, Mr. Gambina alleges that he
receives a total of five hours per week of solitary exercise in a small,
enclosed outdoor area. He has a small television set in his cell through
which he can access educational or religious programming. He is routinely
strip-searched each time he enters or leaves his cell, whether for exercise,
visitations, or any other reason. He is provided two social telephone calls per
month and five non-contact visits with visitors. He has no contact with other
inmates and limited contact with ADX staff.

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The District Judge’s Order on the Motion for Judgment on the Pleadings was entered on September
28, 2011. [#48] On April 20, 2012, the Court of Appeals for the Tenth Circuit issued a decision in Rezaq v.
Nalley, 677 F.3d 1001. In Rezaq, the Tenth Circuit held that “the conditions at ADX . . . do not, in and of
themselves, give rise to a liberty interest because they are substantially similar to conditions experienced in
any solitary confinement setting . . . . We conclude that the conditions in the general population unit at ADX
are not extreme as a matter of law.” The Tenth Circuit further concluded that the ADX inmates who brought
suit in Rezaq “did not have a liberty interest in avoiding confinement at ADX.” 677 F.3d at 1016. The parties
have not addressed the effect of the Rezaq decision on Plaintiff’s claims in this case.

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Order [#48] at 2-3.
Mr. Gambina has been a federal prisoner almost continuously since 1974. He
alleges that he was transferred to ADX from the “Control Unit” at USP-Marion on April 12,
1995. Complaint [#1] ¶ 31. The parties do not dispute that Mr. Gambina did not receive
a hearing to address his transfer to ADX before he was moved there.
In late 2007, BOP Regional Director Michael Nalley issued revised procedures for
wardens to follow before transferring inmates to ADX. The procedures were explained in
a document which the parties refer to as the “Nalley Memorandum.” In accordance with
the Nalley Memorandum, the BOP conducted retroactive hearings for those inmates who
were transferred to ADX prior to 2008, including Mr. Gambina. “The procedures provided
that the inmate being referred should receive notice of the transfer hearing, an opportunity
to participate in the hearing, a written recommendation by the hearing officer, and
administrative review of the regional director’s decision by the BOP’s general counsel.”
Rezaq, supra, at 1006.
On August 17, 2010, a BOP hearing officer conducted a retroactive due process
hearing to determine whether Plaintiff met the criteria for placement in the ADX general
population. Declaration of Charles E. Samuels, Jr., ¶ 3, attached as Exh. B; Deposition of
Eleanor Alexander, p. 17, ll. 16-21, attached as Exh. C. The hearing was conducted
pursuant to the procedures set forth in the Nalley Memorandum. Exh. C at pp. 36-37, ll.
25-3. The hearing officer received written information from ADX known as a “referral
packet,” which she reviewed in advance to prepare for the hearing. Id. at p. 42, ll. 11-23.
The referral packet “include[d] all materials provided to the Hearing Administrator, or any
other [BOP] personnel, in advance of the plaintiff’s ADX placement hearing for the purpose
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of preparing for or conducting the hearing.” Exh. B ¶ 3. According to the hearing officer,
the referral packet pertaining to Mr. Gambina contained “information that describes the
inmate’s misconduct while he has been incarcerated and/or any criminal actions.” Exh. C
at p. 43, ll. 17-22. The hearing officer “highlighted particular information from the referral
packet in order to prepare for the hearing and to finalize the ADX Hearing Report.” Exh.
B ¶ 7.2
Plaintiff’s Request for Production of Documents No. 2 (“RFP #2") seeks “any and all
prison records for Mr. Gambina. . . .” As a result of counsels’ efforts to confer about their
dispute over RFP #2, the scope of the dispute has been narrowed to the referral packet
relating to Plaintiff’s hearing. Letter from David L. Glandorf to Juan Villaseñor dated
January 20, 2012 and Letter from Juan Villaseñor to David L. Glandorf dated January 26,
2012, attached as Exh. D. Defendant describes the disputed documents in its privilege log
as a six-page “BOP document containing information about Inmate Gambina (with
highlights),” a ten-page “SENTRY printout containing information about Inmate Gambina
(with highlights)” and a two-page “SENTRY printout containing information about Inmate
Gambina (with highlights).”3 Privilege Log dated April 29, 2011, attached as Exh. E.
Defendant submitted the referral packet for an in camera inspection by the Court on August
29, 2012. [#112]

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In the Order on Defendant’s Motion for Judgment on the Pleadings, the Court held that Mr. Gambina
“may timely challenge the procedural sufficiency of the July 2010 ‘retroactive’ ADX assignment hearing. . .[but]
his challenge to the 1995 decision to transfer him to ADX is untimely.” [# 48] at 10. The BOP does not contest
the relevance of the referral packet to Plaintiff’s claim regarding denial of his Fifth Amendment due process
rights.
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SENTRY is apparently a computer software program used by BOP personnel to maintain
information regarding inmates, including their housing assignments and chronological disciplinary record. Exh.
C at p. 44, ll. 2-9.

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II. Analysis
Defendant contends that discovery of the referral packet is precluded by the
deliberative process privilege. Plaintiff contends that the deliberative process privilege is
inapplicable to the referral packet. The Court agrees with Plaintiff.
The deliberative process privilege is a form of executive privilege that allows the
government to withhold documents which reveal “advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies
are formulated.”

In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).

“Two

requirements are essential to the deliberative process privilege: the material must be
predecisional and it must be deliberative.” Id. The privilege does not protect material that
is “purely factual, unless the material is so intertwined with the deliberative sections of
documents that its disclosure would inevitably reveal the government’s deliberations.” Id.
The government has the burden of proving the applicability of the deliberative
process privilege, which is “a qualified privilege and can be overcome by a sufficient
showing of need.” Id. at 738. If the government succeeds in carrying its burden of showing
that the material qualifies as predecisional and deliberative, the court must decide whether
the privilege is overcome by the requesting party’s showing of need. Id. Factors to be
considered in balancing the interests between the government and the need of the party
seeking disclosure of the material include its relevance, the availability of other evidence,
the seriousness of the litigation, the role of the government, and the possibility of future
timidity by government employees. Id.; see also Fourhorn v. City & Cnty. of Denver, No.
08-cv-01693, 2009 WL 2407569 at *4 (D. Colo. Aug. 3, 2009).
The parties do not dispute that the referral packet is “predecisional,” in that it was
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“prepared in order to assist an agency decision maker in arriving at [her] decision, rather
than to support a decision already made.” Petroleum Information Corp. v. U.S. Dep’t of the
Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (quoting Renegotiation Bd. v. Grumman
Aircraft, 421 U.S. 168, 184 (1975)). However, Mr. Gambina argues that the referral packet
is not deliberative, because it consists of factual material which does not qualify for
protection merely as a result of being “conveyed [to the hearing officer] during the
deliberative process.” Plaintiff’s Brief [#90] at 4. Indeed, careful jurists have drawn the line
between information conveyed during the deliberative process which is entitled to
protection, and information conveyed during the deliberative process which is not.
It is not enough to show that the information was conveyed
during the deliberative process; instead, the statement or
document must have been ‘a direct part of the deliberative
process in that it makes recommendations or expresses
opinions on legal or policy matters. Put another way, predecisional materials are not exempt merely because they are
predecisional; they must also be a part of the agency give-andtake of the deliberative process by which the decision itself is
made.’
Cobell v. Norton, 213 F.R.D. 1, 5 (D. D.C. 2003)(emphasis added).
After a careful reading of the twenty-page referral packet, I find that it contains five
sentences on five different pages that might be construed as policy statements or opinions
on factual matters. Two sentences contain justifications for past decisions regarding Mr.
Gambina’s prison assignments which might be construed as BOP “policy statements,” but
which are not identified as such, and which instead are included as part of a chronological
narrative regarding Mr. Gambina’s incarceration in the federal prison system. Three short
sentences express opinions about Mr. Gambina’s adjustment to incarceration. Certain
facts contained in the referral packet are highlighted, presumably by the hearing officer.
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The referral packet contains no handwritten or other notations of any kind.
In short, the referral packet is overwhelmingly factual in nature. It simply does not
“make recommendations or express opinions on legal or policy matters.” Rather, it
compiles factual data regarding Plaintiff and his behavior during his extensive period of
incarceration. The sentences which could be construed as expressing “policy” or “opinions”
are so predominantly factual that redaction is unnecessary. This is not a situation where
the factual and deliberative content of a disputed document is inextricably intertwined. It
is more like a bucket of water that contains a drop or two of ink. The presence of the ink
in the water is virtually undetectable, like the presence of “recommendations,” “opinions”
or “deliberations” is virtually undetectable here. As a result, I conclude that the content of
the referral packet is factual, not deliberative.
Although the substantive content of the referral packet is not properly protected by
the deliberative process privilege, does the fact that the hearing officer highlighted certain
information in the packet transform it? I find that it does not. The mere presence of
highlighting by the hearing officer does not change the fundamental, overwhelmingly factual
nature of the documents. Courts have long recognized that factual information is not
protected (see, e.g., Envtl. Prot. Agency v. Mink, 410 U.S. 73, 88 (1973)), and despite the
possibility that the hearing officer’s highlighting may somehow relate to her thought
processes, the deliberative process privilege is not that broad. It simply protects against
disclosure of government decision-makers’ thought processes during decision-making. As
an experienced highlighter, I can say that the value of such marks in revealing thought
processes (the essence, after all, of “deliberation”) is marginal at best. Although the
highlighting may demonstrate which facts were of particular note to the hearing officer, it
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does not turn those facts into information about her thought processes in reaching her
decision any more than putting two drops of ink into a bucket of water changes the liquid
into a bucket of ink.
At the end of the analysis, the referral packet is overwhelmingly factual material
which, despite its purpose of conveying information during the deliberative process, reveals
nothing of substance about recommendations, policies or deliberations which may
ultimately have influenced the decision made.

Therefore, the referral packet is not

protected by the deliberative process privilege.
Accordingly, the Motion is GRANTED. The Clerk shall change the restriction level
of the documents submitted at Docket No. 111 to Level 1 pursuant to D.C.COLO.LCivR
7.2B.5.
Dated: September 12, 2012

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