Matson v. Kansas, State of et al

Filing 89

MEMORANDUM AND ORDER granting 74 Defendant's Motion for Protective Order; denying 81 Plaintiff's Motion for Oral Argument. See attached order for details. Signed by Magistrate Judge K. Gary Sebelius on 8/20/2013. Mailed to pro se party Plaintiff by regular mail. (mrb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MIKE C. MATSON,
Plaintiff,
v.
JOEL HRABE,
Defendant.

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Case No. 11-3192-RDR

MEMORADUM AND ORDER
This matter comes before the Court upon Defendant Joel Hrabe’s Motion for Protective
Order (ECF No. 74) and Plaintiff Mike Matson’s Motion for Oral Argument on Mr. Hrabe’s
Motion for Protective Order (ECF No. 81). The parties have fully briefed Mr. Hrabe’s Motion,
and the Court finds that oral argument will not materially aid in its resolution. Therefore, the
Court denies Mr. Matson’s Motion for Oral Argument. Based upon the following reasons, the
Court grants Mr. Hrabe’s Motion for Protective Order.
I.

Relevant Background

Mr. Matson, proceeding pro se, is currently an inmate at the Ellsworth Correctional
Facility. On November 10, 2011, Mr. Matson brought a civil action pursuant to 42 U.S.C. §
1983, alleging that Mr. Hrabe, a deputy warden at the Norton Correctional Facility (“NCF”),
violated his constitutional rights by impeding upon his access to the courts and by retaliating
against him for exercising his constitutional rights while in custody at NCF. On January 9, 2013,
the court dismissed Mr. Matson’s access-to-the-courts claim in its entirety and dismissed, in part,
his retaliation claim. Mr. Matson’s claim as it pertains to Mr. Hrabe’s alleged illegal retaliation
for transferring him to a different cell was permitted to go forward.

The court has subsequently conducted a scheduling conference and Mr. Matson has
served discovery requests upon Mr. Hrabe. Mr. Hrabe contends that the discovery requested
includes documents and information of a confidential nature that would jeopardize institutional
security. As a result, the parties tried to come to an agreement on a protective order in this case.
However, the parties have come to an impasse on a number of provisions. Specifically, the
parties disagree on the following two issues: 1) providing Mr. Matson with copies of all
discoverable documents containing confidential information, and 2) allowing Mr. Matson to
inspect copies of documents containing confidential information before such information is
redacted.1 Each party has submitted a separate proposed protective order for the Court’s review.
II.

Discussion

Pursuant to Fed. R. Civ. P. 26(c), a “court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” The
decision to enter a protective order is within the court’s discretion.2 In fact, the Supreme Court
recognizes that “[t]he trial court is in the best position to weigh fairly the competing needs and
interests of parties affected by discovery. The unique character of the discovery process requires
that the trial court have substantial latitude to fashion protective orders.”3 Despite this broad
discretion, “a protective order is only warranted when the movant demonstrates that protection is
necessary under a specific category set out in Rule 26(c).”4 In addition, the party seeking a

1

See Pl.’s Mem. in Opp’n to Def.’s Mot. for Protective Order, at 3, ECF No. 77; Def.’s Mem. in Supp. of Mot. for
Protective Order, at 4-7, ECF No. 75.
2

Thomas v. Int’l Bus. Machs., 48 F.3d 478, 482 (10th Cir. 1995).

3

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (10th Cir. 1984) (internal citations omitted).

4

Herrera v. Easygates, LLC, No. 11-CV-2558-EFM-GLR, 2012 WL 5289663, at *2 (D. Kan. Oct. 23, 2012) (citing
Aikins v. Deluxe Fin. Servs., Inc., 217 F.R.D. 533, 534 (D. Kan. 2003)).

2

protective order bears the burden of establishing good cause.5 To do this, the movant must make
“a particular and specific demonstration of fact, as distinguished from stereotyped and
conclusory statements.”6 Regardless of whether the parties agree to certain provisions or not, the
Court must determine whether good cause is shown for the entire protective order, not just those
in dispute.7
In this case, the parties seek a blanket protective order over confidential information. As
explained by Magistrate Judge David J. Waxse,
A blanket protective order places upon the parties the initial burden
of determining and defining what information is entitled to
protection. Typically, a blanket protective order requires counsel
for a producing party to review the information to be disclosed and
designate the information counsel believes, in good faith, is
confidential or otherwise entitled to protection. The designated
information is then protected from certain uses and disclosure
under the terms of the protective order, unless the designation is
objected to by an opposing party. If the parties are unable to
resolve their dispute regarding the designation, the court may
review the designation and determine whether the designated
information should be protected. The terms of a blanket protective
order, like the terms of the two other types of protective orders,
must be approved by the court, since a protective order is, by
definition, an order of the court and not merely a stipulation or
agreement of the parties.8
“The agreement of all parties is not required to enter a blanket protective order as long as
the party seeking protection makes some threshold showing of good cause to believe that

5

Layne Christensen Co. v. Purolite Co., 271 F.R.D. 240, 244 (D. Kan. 2010).

6

Aikins, 217 F.R.D. at 534 (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, n.16 (1981)).

7

Univ. of Kansas Ctr. for Research, Inc. v. United States, No. 08-2565-JAR-DJW, 2010 WL 571824, at *4 (D. Kan.
Feb. 12, 2010).
8

Id. (internal citations omitted).

3

discovery will involve confidential or protected information.”9 To meet this burden, the party
may establish good cause on a generalized basis as opposed to a document-by-document basis.10
With these standards in mind, the Court will address both the agreed upon and the
disputed terms of the proposed protective orders.
A. Existence of Good Cause to Enter a Protective Order
Before turning to the disputed provisions, the Court must initially determine whether
good cause exists to enter a blanket protective order restricting information from use outside of
this litigation pertaining to what the parties agree, in most respects, to be confidential. After
review of the parties’ proposed protective orders and the briefing on this matter, the court finds
that the parties have sufficiently demonstrated good cause for an entry of a blanket protective
order. The Court now turns to the particular provisions in dispute.
B. Providing Mr. Matson with Copies of Discoverable Documents Containing
Confidential Information
Mr. Hrabe’s proposed protective order limits Mr. Matson from using or disclosing
confidential information, specifically to other inmates, for any purpose outside of this lawsuit.
Further, Mr. Hrabe’s proposed protective order allows, consistent with facility procedures, for
Mr. Matson to have reasonable access and time to read and review the confidential information
in a secure setting. Mr. Matson, however, would not be allowed to make or retain copies of the
confidential information unless allowed by Mr. Hrabe or upon court order.
“Confidential Matter” as described in Mr. Hrabe’s proposed protective order includes:
information pertaining to the security operations of the Kansas
Department of Corrections (“KDOC”) correctional facilities,
personnel records, personal contact information of KDOC current
and former employees, documents containing private information
9

Bartholomees v. Signator Investors, Inc., No. 03-2081-GTV, 2003 WL 22843174, at *1 (D. Kan. Nov. 25, 2003).

10

Id.

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about inmates, and information that discloses confidential sources
or intelligence gathering methods that may be produced during
discovery in this action.11
Mr. Matson agrees with this definition except for the inclusion of “information that discloses
confidential sources.”12 He asserts that this portion may pertain to complaints filed by inmates
against staff.13 He claims to have a First Amendment right to disseminate such information
because it relates to Mr. Hrabe’s alleged misconduct, abuse of power, and other constitutional
concerns.14 However, Mr. Hrabe argues that the information he seeks to keep confidential
includes:
information about housing assignments of other inmates, daily
notes maintained by correctional officers, unit team managers, and
unit team counselors regarding day-to-day operations of the facility
and rehabilitation of inmates, internal e-mails sent and received by
prison staff concerning the operation of facilities at NCF, prison
staff personal contact information, and inmate[, including Mr.
Matson’s,] mental health records.15
Mr. Hrabe contends that allowing Mr. Matson to retain a copy of such confidential
information could jeopardize the safety and rehabilitation of inmates at NCF; could open the
facility to the risk of security breaches; and could expose any potential weaknesses of staff
members, other inmates, and Mr. Matson himself. Mr. Matson argues that he would be
prejudiced by not being allowed to copy such confidential material because it would impose a
hardship that may “impede, hinder and frustrate Plaintiff’s ability to, in good faith, obtain his
discoverable material which he needs to prove his claims.” Mr. Matson also wants to receive a

11

Def.’s Proposed Protective Order, at 2, ECF No. 74-1.

12

Pl.’s Mem. in Opp’n to Def.’s Mot. for Protective Order, at 7-8, ECF No. 77.

13

Id.

14

Id.

15

Def.’s Mem. in Supp. of Mot. for Protective Order, at 4, ECF No. 75.

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copy of his mental health records, even though KDOC has a policy against inmates viewing their
own health records without a member of the clinical staff present.16
As explained by the Supreme Court, “[t]he difficulties of operating a detention center
must not be underestimated by the courts.”17 “[T]he problems that arise in the day-to-day
operation of a corrections facility are not susceptible of easy solutions.”18 “Maintaining safety
and order at these institutions requires the expertise of correctional officials, who must have
substantial discretion to devise reasonable solutions to the problems they face.”19 Consequently,
the Supreme Court has confirmed the importance of this deference to be given to correctional
officials.20
The Court shares Mr. Hrabe’s concern that the confidential information sought by Mr.
Matson may lead to institutional security issues, as described above, even though Mr. Matson is
now housed at a different facility. In addition, Mr. Matson will be provided ample opportunity to
review these documents and use them to prosecute his claim. Namely, he will be provided
reasonable access to the confidential documents in a secured setting. He may include the
confidential information in any affidavit, briefs, memoranda, or other paper filings made with the
court after either agreement of Mr. Hrabe or upon court order. He also may disclose this
confidential information to others outside of this litigation but only after either agreement by Mr.

16

Kansas Department of Corrections, Internal Management Policy and Procedure § 05-101, at 5,
http://www.doc.ks.gov/kdoc-policies/AdultIMPP/chapter-5/05101.pdf.
17

Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 132 S. Ct. 1510, 1515 (2012) (citing Turner v.
Safley, 482 U.S. 78, 84-85 (1987)).
18

Bell v. Wolfish, 441 U.S. 520, 547 (1979).

19

Florence, 132 S. Ct. at 1515 (citing Turner, 482 U.S. at 89).

20

Id.

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Hrabe or upon a court order—a provision routinely included in blanket protective orders
previously granted by this Court.
Turning to Mr. Matson’s request to receive a copy of his mental health records, Mr.
Matson does not argue with the policy in place. Rather, he argues that because KDOC allows for
the release of such medical records to an inmate’s attorney, he should be allowed to receive a
copy of such records because he is acting as his own attorney.21 The Court, however, gives
deference to the established policy regarding inmate access to their records. This provision
states:
A. An inmate or former inmate shall have limited access to his/her
own records as follows:
...
2. May schedule an appointment with a member of the
clinical staff to discuss the contents of a medical record,
clinical evaluation and/or treatment record prepared by a
clinical staff member.
a. The inmate or former inmate shall not be
furnished a copy.22
This provision clearly states that an inmate will not be furnished a copy of his own
medical records. However, the inmate is allowed to discuss its content with a member of the
clinical staff. Nonetheless, Mr. Matson directs the court to an Authorization for Release of
Health Information as part of KDOC’s Internal Management Policy and Procedures, which
allows an inmate to release his or her personal health information to an attorney. After review of
this authorization, nowhere does it state that an inmate can be provided a copy of such records.
Therefore, the court gives deference to the explicit language that an inmate shall not be furnished

21

Kansas Department of Corrections, Internal Management Policy and Procedure § 05-107, at Attachment A,
http://www.doc.ks.gov/kdoc-policies/AdultIMPP/chapter-5/05107.pdf.
22

Kansas Department of Corrections, Internal Management Policy and Procedure § 05-101, at 5,
http://www.doc.ks.gov/kdoc-policies/AdultIMPP/chapter-5/05101.pdf.

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a copy of his own records. If Mr. Matson finds it necessary to receive a copy of his mental health
records after reviewing the material with a clinical staff member, Mr. Hrabe’s proposed
protective order provides for a way to accomplish this (i.e. by agreement between the parties or
by court order).
Finally, the Court turns to Mr. Matson’s argument that he has a First Amendment right to
disseminate any information pertaining to Mr. Hrabe’s alleged misconduct, abuse of power, and
violations of constitutional rights. After review of Mr. Hrabe’s proposed protective order, the
Court finds that such information is not restricted on its face. Nonetheless, if Mr. Matson
believes he has a right to disseminate certain information covered under Mr. Hrabe’s proposed
protective order, he can seek permission from Mr. Hrabe or, upon the proper motion, seek a court
order.
The Court notes, however, “that an order prohibiting dissemination of discovered
information before trial is not the kind of classic prior restraint that requires exacting First
Amendment scrutiny.”23 In fact, discovery is a product of legislative grace in which a “litigant
has no First Amendment right of access to information made available only for purposes of
trying his suit.”24 “In sum, judicial limitations on a party’s ability to disseminate information
discovered in advance of trial implicates the First Amendment rights of the restricted party to a
far lesser extent than would restraints on dissemination of information in a different context.”25
As held by the Supreme Court, when “a protective order is entered on a showing of good cause
as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not

23

Seattle Times Co., 467 U.S. at 33.

24

Id. at 32.

25

Id. at 34.

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restrict the dissemination of the information if gained from other sources, it does not offend the
First Amendment.”26
Based upon the foregoing analysis, the Court finds that good cause exists to enter Mr.
Hrabe’s proposed protective order as it pertains to Mr. Matson’s retention of copies of the
“Confidential Matter” described therein.
C. Allowing Mr. Matson to Inspect Copies of Documents Containing Confidential
Information Before Such Information is Redacted
As part of Mr. Hrabe’s proposed protective order, he seeks to include a provision that
would redact confidential matter “to protect sensitive information that is legally irrelevant.”27
Specifically, Mr. Hrabe states that the information he seeks to redact relates to other inmates and
their designated housing assignments, which he asserts is legally irrelevant to the remaining
claim. Mr. Hrabe argues that allowing Mr. Matson to view this information prior to it being
redacted places this information at risk of dissemination throughout the inmate population. In
turn, that information could jeopardize institutional safety and pose a security risk for other
inmates by exposing their potential weaknesses or placement with other inmates. Mr. Matson
does not argue with the necessity of redacting this information but wants to inspect copies of the
documents before the information is redacted.
The Court agrees that information relating to other inmates and their housing assignments
could potentially create security concerns—a point of which Mr. Matson does not argue against.
In fact, “[p]rison officials have a duty . . . to protect prisoners from violence at the hands of other

26

Id. at 37.

27

Def.’s Proposed Protective Order, at 2, ECF No. 74-1.

9

prisoners.”28 Information released to Mr. Matson, despite his purported good prison behavior and
his relocation to the Ellsworth Correctional Facility, could thwart prison officials’ goal to
maintain institutional security and prevent violence amongst prisoners. In addition, Mr. Hrabe’s
proposed protective order includes a provision to request, upon the proper motion, an in camera
review by the court regarding redaction disputes. Therefore, because Mr. Matson is provided an
opportunity to dispute redacted information and given that courts should defer to correctional
officials’ concerns for safety, the Court finds that good cause exists to enter Mr. Hrabe’s
proposed provision of his protective order as it pertains to redacted material.
The Court will enter, in most respects, Mr. Hrabe’s proposed protective order in
conformity to this District’s guidelines for protective orders.
Accordingly,
IT IS THEREFORE ORDERED that Defendant Joel Hrabe’s Motion for Protective
Order (ECF No. 74) is hereby granted. The Court also denies Plaintiff Mike Matson’s Motion for
Oral Argument on Mr. Hrabe’s Motion for Protective Order (ECF No. 81)
IT IS FURTHER ORDERED that the Court will enter, in most respects, Mr. Hrabe’s
protective order consistent with this Memorandum and Order and this District’s guidelines in a
separate filing.
IT IS SO ORDERED.
Dated this 20th day of August, 2013, at Topeka, Kansas.

s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge

28

Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 833
(1994)).

10