Jordan v. Attorney General et al

Filing 172

ORDER DENYING 158 MOTION for Access to Certain Discovery Materials, 161 MOTION for Access to Certain Discovery Materials, 164 MOTION for access to certain discovery materials, 168 MOTION for Discovery, and 170 MOTION for Leave to File fil ed by Joseph Ray Jordan. Plaintiff to provide notice to the Court indicating what access he has been given to review documents. The United States is to provide Plaintiff with a list of documents held for review. Notice and List due by 11/29/2022. The response deadline for 137 MOTION for Summary Judgment is reset to 1/6/2023. Reply brief due two weeks after response. Signed by Chief Judge Nancy J. Rosenstengel on 11/15/2022. (anp)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH RAY JORDAN,
Plaintiff,
Case No. 18-cv-1100-NJR

v.
UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Joseph Ray Jordan, an inmate of the Federal Bureau of Prisons (“BOP”)
who is currently incarcerated at the Federal Correctional Institution located in Butner,
North Carolina (“FCI – Butner”), brings this action for alleged violations of his federal
rights that occurred while he was incarcerated at the United States Penitentiary located
in Marion, Illinois (“USP – Marion”). Jordan was allowed to proceed on a single Federal
Tort Claims Act (“FTCA”) claim against the United States for negligence in failing to
protect him from an inmate assault and in placing him in the Special Housing Unit
(“SHU”) after surgery on his jaw.
This matter is before the Court on several discovery motions filed by Jordan. He
filed a motion to access certain discovery materials (Doc. 158) and a duplicate motion for
the same materials (Doc. 161). The United States filed a response (Doc. 160) to the motion.
Jordan later filed a motion for access to existing discovery materials (Doc. 164). The
United States filed a response to that motion (Doc. 167). Jordan filed a reply brief
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(Doc. 171). Jordan also filed a motion for leave to conduct additional discovery (Doc. 168).
The United States filed a response to that motion (Doc. 169). Jordan also recently filed a
motion for leave to obtain statements from inmates (Doc. 170).
BACKGROUND
On October 3, 2018, Jordan filed his First Amended Complaint pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80 (Doc. 16). 1 His Amended
Complaint alleged that he was attacked by inmates in USP-Marion’s Communications
Management Unit (“CMU”) and that the BOP Director and prison warden failed to
protect him from the assault (Doc. 19, pp. 1-2). He also alleged that, as a result of the
assault, he suffered a broken jaw (Id. at p. 2). Upon returning to the prison after surgery,
he was placed in the CMU’s special housing unit rather than the health care unit, which
Jordan alleged caused him to be denied adequate medical care.
Jordan was allowed to proceed on a single count:
Count 1:

Defendant United States, by and through the negligence of
the BOP Director and USP-Marion wardens, officers, and
administrators, is liable for Jordan’s 2014 assault and
resulting injuries.

(Doc. 19, p. 3).
The original discovery deadline in this case was set for March 13, 2020 (Doc. 57).
Jordan conducted discovery, serving written discovery requests (See Docs. 73, 74, 84).
Discovery closed and the Court granted two extensions of the dispositive motion

Jordan later attempted to file a Second Amended Complaint (Docs. 28, 66), but his motions were
denied (See Docs. 56, 63, 73).
1

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deadline (Docs. 97 and 103). Prior to the dispositive motion deadline, the Court assigned
counsel to Jordan because he demonstrated difficulties conducting discovery in light of
the pandemic (Doc. 106). Counsel was granted leave to file a motion to compel in order
to resolve any outstanding discovery requests and to request additional discovery
(Doc. 111). On August 14, 2020, Jordan’s counsel filed a motion to compel to resolve
outstanding discovery disputes and request additional discovery (Doc. 112). The Court
granted the motion, in part, and ordered the United States to produce the relevant
Discipline Hearing Officer (“DHO”) report to Jordan’s counsel, allowed counsel to
submit additional discovery requests, and extended the discovery deadlines (Doc. 123).
The parties also agreed to a protective order, which allowed the production of the DHO
reports for attorneys’ eyes only (See Doc. 121). Discovery was reopened and proceeded
until March 2022. At that time, the Court reset the dispositive motion deadline (Doc. 136).
On April 15, 2022, the United States filed its motion for summary judgment (Doc. 137).
After the summary judgment motion was fully briefed, Jordan filed a pro se motion
seeking to dismiss his assigned counsel (Doc. 147). Jordan alleged that his counsel did not
consult with him on discovery due to the protective order nor did he consult with counsel
in filing a response to the United States’s summary judgment motion (Id.). On June 15,
2022, the Court held a hearing on Jordan’s motion regarding counsel. Jordan requested
to withdraw and proceed pro se in filing a new response to the summary judgment
motion. At that time, the Court warned Jordan that some of the discovery produced to
his counsel was for attorney’s eyes only under the protective order (Doc. 121) and would
not be produced to Jordan for security reasons. He was given additional time to file his
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own response to the pending summary judgment motion as well as a motion regarding
his access to discovery materials. Subsequently, Jordan filed the pending discovery
motions.
ANALYSIS
A. Discovery Documents
Jordan filed a number of motions seeking discovery documents which were
previously produced to his assigned counsel. Jordan’s initial discovery motions
(Docs. 158, 161) 2 sought all non-protected documentary exhibits which accompanied the
United States’s summary judgment motion and Jordan’s response, all protected materials
which accompanied Jordan’s response, and specific BOP program statements (Doc. 158,
pp. 102).
The United States agreed to provide all of the documents attached to its motion,
all non-sealed attachments to Jordan’s brief, a list of all discovery, relevant BOP program
statements, photographs of Jordan’s injuries, and access to the surveillance footage
(Doc. 160, pp. 1-2). The United States objected to providing Jordan with a copy of the
surveillance footage but indicated that Jordan could review the footage at his current
institution. The United States also objected to producing BOP program statements not
specifically mentioned in Jordan’s motion as the statements were available to the public
and Jordan could obtain them on his own. The Government also objected to any
documents provided to Jordan’s counsel pursuant to the protective order and labeled

2

Jordan’s second motion to compel (Doc. 161) is a duplicate of his initial motion.

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“attorney’s eyes only.” (Doc. 121). Those documents included two documents attached
to Jordan’s response under seal which included the DHO Report and medical records
and photographs of inmate Menter, the inmate who attacked Jordan. The Government
argued the documents contained private and sensitive information regarding inmate
Menter. The Government was also willing to stipulate that Menter was punished as a
result of the altercation while Jordan did not receive punishment. Further, the
Government agreed to produce the other sealed documents attached to the response with
redactions, so long as Jordan reviewed but did not maintain the documents in his
possession.
Jordan subsequently filed a motion for access to certain existing discovery
materials (Doc. 164). He acknowledged that he received discovery materials from the
United States, to include: exhibits attached to the United States’s motion for summary
judgment, documents from Jordan’s response which were filed in the public record,
certain BOP Program Statements, and two photographs of Jordan (Doc. 164, p. 2). Jordan
now seeks access to documents provided to his former counsel to include: partially
unredacted investigative report and related materials, Inmate Menter’s DHO report,
intelligence research specialist position description, Jordan electronic copouts, CMU #1
Post Orders redacted, and CMU #2 Post Orders redacted. He also seeks documents not
subject to the protective order: Marion CMU Supplement, Correctional Services
Procedures Manual, Case Manager Position Description, and all documents referenced
in deposition testimony. Jordan also objects to not being able to retain copies of
documents filed under seal, noting that, at the time of filing, he had not yet been given
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an opportunity to review those documents. The United States has since produced all
previously produced documents not subject to the protective order. The United States
also agreed to produce all discovery responses requested in Jordan’s motion (Doc. 164,
p. 3). Thus, at this time, Jordan has received some of the discovery documents 3 but
objects to the withholding of some documents from his possession and the withholding
entirely of discovery submitted for attorney’s eyes only. After the final production by the
United States, the following issues remain:
1. Documents for Review
Jordan seeks not only access to review those documents filed under seal and the
surveillance video footage, but also to maintain those documents in his possession.
Jordan does not believe that the United States has provided adequate justification for
withholding those documents from his possession.
To the extent Jordan takes issue with his inability to maintain certain documents
in his possession and requests to keep the documents, that request is DENIED. The
United States has raised valid security concerns with allowing an inmate, such as Jordan,
to possess such materials. Further, the Government has offered to allow Jordan to review
the documents. At the time that Jordan filed his motion for access in September
(Doc. 164), he had not yet been provided with an opportunity to review the items. The
Court does not have any further update from Jordan as to whether he has since obtained
access to those documents (See Doc. 171). Thus, Jordan is DIRECTED to file a Notice with

A complete list of documents produced to Jordan in response to his first motion to compel can
be found at Exhibit 1 to the United States’s response (Doc. 167).

3

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the Court indicating what access he has been given to review the documents. The United
States is also DIRECTED to provide Jordan with a list of the documents held for review
so that Jordan may refer to them when drafting his response brief. Notice by Jordan and
the United States’s document list is due on or before November 29, 2022.
2. Sealed Documents Attached to Jordan’s Response
Jordan also objects to the United States withholding Menter’s DHO report which
was filed with Jordan’s response (Doc. 141-1). 4 Jordan argues that as he was also charged
with the same disciplinary infraction, the DHO report applies to him, and he is entitled
to a copy of the report. Further, he believes that any private information, including
identifying information of inmates, can be redacted.
But the DHO report was the main purpose of the parties entering into a protective
order, limiting the documents to attorney’s eyes only (Doc. 121). Issues with the sensitive
nature of the documents were also part of the consideration in assigning counsel to
Jordan. The Court warned Jordan when he asked to withdraw his counsel that a number
of documents were for attorney’s eyes only and that due to the nature of the documents,
he would not have access to them. As the United States has pointed out, the DHO report
contains private and sensitive information regarding Menter. Although Jordan argues
that he is entitled to the DHO report because he was charged with the same infraction
and the report relates to him, a review of the report, which his assigned counsel attached
to the original response brief (Doc. 141-1), shows that the report is about the charges

The United States has agreed to produce redacted versions of the other documents filed under
seal, with the exception of the Case Manager position description (Doc. 167, p. 2).

4

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against Menter. There likewise are no statements or considerations which would lead to
relevant information about whether the BOP knew or should have known of the danger
posed by certain Muslim gang members (Doc. 141-1). Further, Jordan’s counsel only
offered the report as proof that Menter was charged and convicted of assault, a fact to
which the United States has agreed to stipulate (Docs. 140, p. 4; 160, p. 3). Because the
United States has articulated valid security and privacy concerns (Doc. 160, pp. 2-3) and
the document does not contain any information that would lead to relevant discovery in
this case, Jordan’s request for the production of Menter’s DHO report is DENIED.
3. Attachments to Investigative Report
Although Jordan received a copy of the redacted Investigative Report, he also
seeks to review the attached materials or have unredacted copies filed for in-camera
review by the Court. He also seeks to obtain unredacted information contained on page
6 of the Investigative Report itself which contained interview statements from redacted
inmates (Doc. 137-1, p. 26). But the United States has articulated a valid security reason
for redacting the report, including the identities of witnesses and gang affiliation.
Jordan argues that he is entitled to pursue and receive materials even if the
documents are privileged and cites to Parrott v. United States, 536 F.3d 629, 638 (7th Cir.
2007). In that case, the Seventh Circuit acknowledged issues with possessing materials
which cause security concerns and noted that such concerns can be remedied by
assigning counsel to the inmate or reviewing the documents in-camera. Id. The Seventh
Circuit also indicated that the Court erred in not conducting a more targeted
consideration of the materials.
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This Court did assign Jordan counsel due to the security concerns raised by
documents obtained in discovery, but Jordan chose to discharge his counsel and proceed
pro se. He was warned that he might not be able to review some of the documents because
of the protective order. The Court assigned counsel because the materials are of a
sensitive nature and Jordan cannot possess them. Despite the Court’s warning, Jordan
chose to proceed without counsel. The investigative report was the subject of the
protective order, and the United States has articulated a valid reason for having the
redacted portions remain for attorney’s eyes only.
Further, a review of the unredacted material (Doc. 141-1, pp. 7-10) demonstrates
that the redactions contain no information which would likely lead to discoverable
information regarding the prison’s knowledge of the attack on Jordan. The redactions
include the names of those interviewed and names of inmates, including Jordan and
Menter. Thus, Jordan’s request for an unredacted copy of the Investigative Report is
DENIED.
4. Additional Investigative Report Materials
Jordan also seeks any materials that were gathered during the formulation of the
investigation, including a memo (Bates 872), memo and note 1 (Bates 876-77), note 2
(Bates 878), note from inmate (Bates 880), Ops memo (Bates 881), and memo (Bates 882).
The United States has agreed to produce redacted versions of all of these requested
materials except for the note from an inmate (Bates 880) (Doc. 167, p. 3). The United States
cites a security concern in revealing the identity of the inmate who wrote the note. The
writer specifically requested that his identity remain secret, and production of the note
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would likely reveal the identity of the writer to Jordan. The United States has articulated
a valid security concern with the production of Bates 880. Thus, Jordan’s motion to
produce that document is DENIED.
5. Position Descriptions and Post Orders
Jordan also seeks access to position descriptions and post orders from employees
at Marion CMU. Specifically, he seeks the position description for the Intelligence
Research Specialist (Bates 1192-97), position description for CMU guards (Bates 11981201), CMU #1 Post Orders (Bates 1562-71), and CMU #2 Post Orders (Bates 1572-79).
Jordan argues that the positions and post descriptions are relevant to the United States’s
affirmative defense of the Discretionary Function Exception, which was raised in its
motion for summary judgment.
But again, the United States has raised compelling security concerns with the
release of these documents. The post orders indicate how staff are to carry out their duties
for specific areas of the prison and are marked “Sensitive – Limited Official Use”. They
describe where and how to conduct checks. As the United States points out, allowing an
inmate to possess those descriptions could allow inmates to avoid searches by staff in
order to hide contraband or plan assaults. Further, rosters and position descriptions
would also potentially allow an inmate to plan around prison security operations. Due
to the security concerns raised by these documents, they will remain attorney’s eyes only.
Jordan’s request to obtain the documents is DENIED.
6. Redacted Materials
In addition to the production of various discovery materials, Jordan requests that
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the Court Order the United States to file unredacted copies of any redacted material
provided to him and to include specific explanations for the redactions. He also requests
that the names of inmates Menter and Shnewer be unredacted in any of the documents
produced to him.
As to Jordan’s request for the Court to review unredacted copies of every piece of
redacted discovery provided to Jordan for review, the Court DENIES that request. Jordan
has not raised issues with every redaction in the produced documents. And his counsel
had ample opportunity to object to redactions prior to the close of discovery and failed
to do so. Further, the Court has addressed the specific issues Jordan had with redactions
raised in his motions. The Court also DENIES Jordan’s request to unredact Menter and
Shnewer from the record. Again, Jordan and his counsel had ample time to make
objections to discovery produced throughout the course of this litigation and did not do
so. The Court finds his requests now to be untimely.
B. Request to Reopen Discovery
In addition to obtaining all of the discovery already produced in this case, Jordan
asks to reopen discovery and serve an additional 25 interrogatories on the United States
and a request for production (Doc. 168). Jordan argues that additional discovery is
needed in order to adequately respond to the pending summary judgment motion. He
also argues that the current discovery is inadequate. Jordan recently filed a motion for
leave to obtain statements from inmates (Doc. 170) which also seeks additional discovery.
He asks for a means to request and obtain statements from inmates that were housed in
the CMU with Jordan at the time of the assault.
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But Jordan has had extensive time to conduct discovery both before he was
assigned counsel and with the help of counsel. Discovery in this case was reopened when
the Court assigned Jordan counsel so that additional discovery could be obtained.
Discovery has long since closed. The Court did not anticipate additional discovery being
conducted when Jordan’s counsel was discharged. In fact, the Court noted at the time
that Jordan was allowed to file one motion identifying materials that were produced
through the course of discovery but that he did not currently have in his possession.
Jordan has now filed five motions regarding discovery. The United States has already
filed its motion for summary judgment and the Court will not reopen discovery. Jordan’s
request to reopen discovery (Doc. 168) and his request for statements (Doc. 170) are
DENIED.
CONCLUSION
For the reasons stated above, Jordan’s discovery motions (Docs. 158, 161, 164, 168,
and 170) are DENIED. The Court will not reopen discovery and Jordan now has all of the
discovery which was not subject to the protective order. Now that all remaining
discovery issues have been resolved, the Court resets Jordan’s deadline for filing a
response to the pending summary judgment motion for January 6, 2023. The United
States shall have two weeks from the date Jordan files his response to file a reply brief.
IT IS SO ORDERED.
DATED: November 15, 2022
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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