ROWE v. FINNAN et al

Filing 80

ORDER ON MOTIONS TO COMPEL (Dkt. 42 , 47 ). See Order. Signed by Magistrate Judge Mark J. Dinsmore on 6/4/2013. Copy Mailed. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JEFFREY ALLEN ROWE,
Plaintiff,
vs.
ALAN FINNAN,
ALBERTA POTTER,
DODD,
ROGERS,
DANIEL BODLOVICH,
DENNIS DAVIS,
BRUCE HEMLING,
EDWIN BUSS,
HOWARD MORTON,
KRISTY RICHARDSON,
LARRY FOWLER,
L.A. VANNATTA,
LISA ASH,
MICHELLE PAVESE,
STEPHEN HALL,
WALTER PERTERSON,
WAYNE SCAIFE,
WILLIAM WILSON,
Defendants.

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ORDER ON MOTIONS TO COMPEL
This matter comes before the Court on two motions to compel
filed by the Plaintiff, Jeffrey Rowe.

[Dkt. 42, 47.] After

reviewing the submissions and hearing the arguments, the Court
rules as follows.
A.

Plaintiff’s First Verified Motion to Compel Discovery [Dkt.
42]
Plaintiff’s first motion to compel relates to Defendant’s

responses to Request Nos. 1, 2, 6, 7, 8, 9, 10, 12, and 13 in

Plaintiff’s First Request for Production.

The Court will address

each of those requests in turn.
Request Nos. 1 & 2
Request No. 1 seeks “[a] list of all groups that the Ind.
Dep’t of Correction has classified as a Security Threat Group
(STG).”

[Dkt. 42-1 at 1.]

Request No. 2 seeks “[a] list of all

symbols that the Ind. Dep’t of Correction has classified as an
STG related symbol.”

[Id.]

Defendants object on the grounds

that the Request seeks information that could compromise the
safety and security of the facility.

[Id. at 1-2.]

Defendants argue that the security of the prison is the
primary goal of any such facility and that, in weighing the
totality of the circumstances, the Court should find that the
burden to the system in terms of compromised security outweighs
the value of the material sought by the Plaintiff.

See Jones v.

North Carolina Prisoners’ Labor Union, 433 U.S. 119, 132 (1977)
(noting that “central to all other corrections goals is the
institutional consideration of internal security” (citing Pell v.
Procunier, 417 U.S. 817, 823 (1974))); Patterson v. Avery
Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (noting that
“the court should consider ‘the totality of the circumstances’”
in deciding which materials are relevant under Rule 26 (citing
Rowlin v. Alabama, 200 F.R.D. 459, 461 (M.D. Ala. 2001)));
Caldwell v. Miller, 790 F.2d 589, 599 (7th Cir. 1986) (noting
that the “seriousness of a threat to institutional security”

turns on “the specific facts surrounding the particular incident”
(citing Hewitt v. Helms, 459 U.S. 460, 474 (1983))).
The Court agrees.

The information sought by Request Nos. 1

and 2 has only tangential relevance to Plaintiff’s claims, if any
at all, and the facility’s interest in maintaining security
against internal threats significantly outweighs any need
Plaintiff may have for the information sought.

Accordingly,

Plaintiff’s motion to compel with respect to Request Nos. 1 and 2
is denied.
Request No. 6
Request No. 6 seeks “[a]ll Ind. Dep’t of Correction
communications, e-mails, memorandums, minutes from policy review
hearings – after May of 2010 – discussing visitation from exoffenders with current offenders.”

[Dkt. 42-1 at 3.]

Defendants

acknowledge the potential relevance of the information sought,
but object that the request is overly broad and may potentially
invade the deliberative process privilege.

[Id.]

Defendants

have produced Policy No. 02-01-102 on offender visitation.
By agreement of the parties, the Court will limit the scope
of Request No. 6 to read as follows: All communications after May
of 2010 with or between the Commissioner of the Indiana
Department of Corrections, the Deputy Commissioner of the Indiana
Department of Corrections, the Executive Director of Adult
Facilities for the Indiana Department of Corrections, and/or the
Policy Manager for the Indiana Department of Corrections

discussing visitation of ex-offenders with current offenders.
With that change, Defendants’ overbreadth objection is overruled.
Defendants’ privilege objections are preserved, but must be
communicated by a privilege log on a document-by-document basis.
Request No. 7
Request No. 7 seeks “[d]ocumentation that would enable
Plaintiff to calculate the percentage of trafficking cases in
visitation rooms throughout the Ind. Dep’t of Correction as the
cases related to ex-offender immediate family member visitors,
ex-offender not immediate family member visitors, and visitors
without a criminal record.

This request is [limited] to

trafficking cases that occurred throughout the Indiana Department
of Correction visitation rooms during the last 10 years.”
42-1 at 3.]

[Dkt.

Defendants object that the request is vague for lack

of specificity, is overly broad, is unduly burdensome, is not
reasonably calculated to lead to the discovery of admissible
evidence relating to a claim or defense in the matter, and may
potentially invade the deliberative process privilege.

[Id.]

Defendants argue that the information sought is not compiled by
the State and that they would need to review each individual
incident report at every facility throughout the State in order
to determine whether that report contained any relevant
information and then compile that information from those reports
that might contain the relevant information.
The Court finds Plaintiff’s request to be sufficiently

specific to overcome Defendants’ vagueness objection.

Likewise,

the Court finds the information requested to be potentially
relevant to one of Plaintiff’s claims in this matter, so those
objections are overruled.

However, in light of the fact that no

central repository of the requested information exists and
extraordinarily expensive effort would need to be undertaken to
gather and collate the information requested, the Court finds
that the burden and expense of the proposed discovery outweighs
its likely benefit in light of the needs of the case, the amount
in controversy, the parties’ resources, the importance of the
issues at stake in the action, and the importance of the
discovery in question in resolving those issues.

Accordingly,

Defendants’ overbreadth and undue burden objections to Request
No. 7 are sustained.

However, if Defendants intend to rely upon

any statistical or other evidence to support the policies at
issue in this matter, to the extent not previously produced, such
evidence should be produced pursuant to Federal Rule of Civil
Procedure 26(a)(1)(A)(ii).
Request No. 8
Request No. 8 seeks “[a]ll documents and information
considered in reaching the decisions to adopt and continue to
enforce IDOC Policy No. 02-01-102, Procedure IX.”
3.]

[Dkt. 42-1 at

At the hearing, Defendants clarified that no responsive

documents have been identified.

Accordingly, Defendants’

objection is overruled and Defendants are directed to clarify

that they possess no documents responsive to this Request.

In

the event that any responsive documents are subsequently
identified, Defendants’ privilege objections are preserved, but
must be communicated by a privilege log on a document-by-document
basis.
Request No. 9
Request No. 9 seeks “[t]he minutes from all policy review
hearings, starting from the policy review hearing whether the
Ind. Dep’t of Correction adopted a policy that prohibits all
forms of visitation from ex-offenders that are not an immediate
family member to the offender that the ex-offender seeks to
visit.”

[Dkt. 42-1 at 4.]

vague and overly broad.

Defendants object to this Request as

[Id.]

At the hearing, counsel for Defendants did not believe any
such hearings had been held, but could not state such to an
absolute certainty.

Accordingly, Defendants’ objections to this

Request shall be sustained in part and overruled in part.

To the

extent that any such documents exist, Defendants shall produce
any transcript or recording, as well as the minutes therefrom, to
any hearing that may have been conducted within the past five
years with regard to the issue of ex-offender visitation.

If no

such documents exist, Defendants are directed to clarify that
they possess no documents responsive to this Request as modified
herein.

In the event that any responsive documents are

subsequently identified, Defendants’ privilege objections are

preserved, but must be communicated by a privilege log on a
document-by-document basis.
Request No. 10
Request No. 10 asks Defendants to “[a]llow Plaintiff to
listen to the audio recording of Plaintiff’s visit to the
Internal Affairs Dep’t on January 19, 2011, concerning the
confiscation of his publications entitled ‘Christian Separatist
Catechism’ and ‘Universalism of Racism – A Critical Review of
James Bruggeman’s “The History of Universalism.”’”
4.]

[Dkt. 42-1 at

Defendants respond that “[n]o responsive documents exist.”

[Id.]

Defendants’ response to the motion clarified that no

recording exists.

[Dkt. 48 at 5.]

Because there is no objection

to this Request and Defendants have made an unequivocal response
thereto, there is nothing to compel.

Accordingly, Plaintiff’s

motion to compel with respect to Request No. 10 is denied as
moot.
Request No. 12
Request No. 12 seeks “[d]ocumentation showing the titles,
author names, and prices of every religious book that the Indiana
Dep’t of Correction has purchased in the last 5 years.”
42-1 at 5.]

[Dkt.

Defendants object that the request is vague and is

not reasonably calculated to lead to the discovery of admissible
evidence relating to a claim or defense in the matter.

[Id.]

After further clarification of Plaintiff’s request, the
Court finds that Request is not unreasonably vague.

However,

with that clarification, the Court does find the Request as
stated to be overly broad and unduly burdensome as well as not
reasonably calculated to lead to the discovery of admissible
evidence relating to a claim or defense in the matter.
Accordingly, Defendants’ objections are sustained in part and
Defendants are directed to respond to the following modified
request: Documentation showing the titles, authors’ names, and
prices of every religious book that the Indiana Department of
Correction has purchased in the last five years at the facilities
in which Plaintiff was housed during that five-year period.
Request No. 13
Request No. 13 seeks “[d]ocumentation showing how many
fights have occurred in facility chapels throughout the Indiana
Department of Correction during the last 5 years, what the
reasons were that motivated the fights (or the suspected reasons
that motivated the fights), and what each of the prisoners’
designated religious preference was that were involved in said
fights.”

[Dkt. 42-1 at 5.]

Defendants object that the request

is vague, is overly broad, is unduly burdensome, and is not
reasonably calculated to lead to the discovery of admissible
evidence relating to a claim or defense in the matter.
Defendants further object on the grounds that the Request seeks
information that could compromise the safety and security of the
facility.

[Id.]

Once again, Defendants explain that a review of countless

individual incident reports and related documents would need to
be conducted to compile the requested information.

In light of

the fact that no central repository of the requested information
exists and the extraordinarily expensive effort that would need
to be undertaken to gather and collate the information requested,
the Court finds that the burden and expense of the proposed
discovery outweighs its likely benefit in light of the needs of
the case, the amount in controversy, the parties’ resources, the
importance of the issues at stake in the action, and the
importance of the discovery in question in resolving those
issues.

Furthermore, the information sought by Request No. 13

has only tangential relevance to Plaintiff’s claims, if any at
all, and the facility’s interest in maintaining security against
internal threats significantly outweighs any need Plaintiff may
have for the information sought.

Accordingly, Plaintiff’s motion

to compel with respect to Request No. 13 is denied.
B.

Plaintiff’s Second Verified Motion to Compel Discovery [Dkt.
47]
Plaintiff’s second motion to compel relates to Defendants’

responses to Request Nos. 1, 2, 3, 4, and 5 in Plaintiff’s Second
Request for Production.

Because the Requests at issue are

related, the Court will address them together.
Request No. 1 seeks “[a]ll investigatory reports and conduct
reports for incidents of violence at the Pendleton Correctional
facility (for the last 5 years) where the incidents involved

prisoner(s) of different races, and the documentation from the
Offender Information System (“OIS”) showing what races each of
those prisoners were/are.”

[Dkt. 47-1 at 1.]

Defendants object

on the grounds that the Request is vague, is overly broad, and
seeks information that could compromise the safety and security
of the facility.

[Id. at 1-2.]

Request No. 2 seeks “[a]ll investigatory reports and conduct
reports for incidents of violence in the Pendleton Correctional
Facility (for the last 20 years) where the incidents occurred
because a prisoner was possessing, or reading, or sharing with
others Identify Christian publication(s).”

[Dkt. 47-1 at 2.]

Defendants incorporate by reference their objections to Request
No. 1 in response to this Request.

[Id.]

Request No. 3 seeks “[a]ll investigatory reports and conduct
reports for incidents of violence at the Pendleton Correctional
facility (for the last 20 years) where the incidents occurred
because a prisoner was possessing or displaying Aryan Nation
standard.”

[Dkt. 47-1 at 2.]

Defendants incorporate by

reference their objections to Request No. 1 in response to this
Request.

[Id.]

Request No. 4 seeks “[a]ny documents showing the current or
last known address for every prisoner involved in the incidents
or violence mentioned in Request Nos. 1-3 above.”
2.]

[Dkt. 47-1 at

Defendants incorporate by reference their objections to

Request No. 1 in response to this Request.

Defendants further

object that the Request is not reasonably calculated to lead to
the discovery of admissible evidence relating to a claim or
defense in the matter.

[Id.]

Request No. 5 seeks “[a]ny documents showing the names,
titles, and current or last known addresses or current or former
Indiana Dept of Correction officials that witnessed or
investigated the incidents of violence mentioned in Request Nos.
1-3 above.”

[Dkt. 47-1 at 3.]

Defendants object on the grounds

that the Request seeks information that could compromise the
safety and security of the facility.

[Id.]

Again, an individualized search of numerous records would
need to be conducted to provide the information sought by
Plaintiff.

In light of the fact that no central repository of

the requested information exists and extraordinarily expensive
effort would need to be undertaken to gather and collate the
information requested, the Court finds that the burden and
expense of the proposed discovery outweighs its likely benefit in
light of the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in the
action, and the importance of the discovery in question in
resolving those issues.

Furthermore, the information sought by

these Requests has only tangential relevance to Plaintiff’s
claims, if any at all, and the facility’s interest in maintaining
security against internal threats significantly outweighs any
need Plaintiff may have for the information sought.

Accordingly,

Plaintiff’s second motion to compel is denied.
Defendants shall produce any responsive documents required
to be produced pursuant to this order, along with a log of any
responsive documents withheld, within twenty-eight days of the
date of this order.
Dated:

06/04/2013

Distribution:
David A. Arthur
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]

Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

Wade J. Hornbacher
INDIANA ATTORNEY GENERAL
[e-mail]
JEFFREY ALLEN ROWE
116017
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838