Howard v. Rodgers et al

Filing 82

ORDER granting Plaintiff's 80 Amended Motion for Order Directing United States Penitentiary Leavenworth Kansas (USPL) to Produce Records Herein Below Set Forth Pursuant to 5 U.S.C. 552a(b)(11). Signed by Magistrate Judge Teresa J. James on 4/13/2018. (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRYAN RICHARD HOWARD,
Plaintiff,
v.

Case No. 17-CV-3019-DDC-TJJ

RAY RODGERS , et al.,
Defendants.

ORDER
This matter is before the Court on Plaintiff’s Amended Motion for Order Directing
United States Penitentiary Leavenworth Kansas (USPL) to Produce Records Herein Below Set
Forth Pursuant to 5 U.S.C. § 552a(b)(11) (ECF No. 80).1 Plaintiff’s counsel has served two
subpoenas under Federal Rule of Civil Procedure 45 on non-party United States Bureau of
Prisons, seeking documents relating to Plaintiff and various employees of the Bureau of Prisons
who work at the United States Penitentiary located in Leavenworth, Kansas. Plaintiff seeks the
documents to support his claims that he was sexually harassed by prison guard Ray Rodgers and
that other penitentiary employees failed to protect Plaintiff.
The United States responded by producing certain documents, but raised Touhy2
objections to producing many of the non-party documents Plaintiff requests.3 Plaintiff does not
1

The Court will find moot Plaintiff’s original motion (ECF No. 79) in light of this
amended motion.
2

The term derives from United States ex re. Touhy v. Ragen, 340 U.S. 462 (1951), and
refers to federal agency regulations that specify internal agency procedures for how and when a
person requesting federal documents can obtain them. The regulations most frequently arise in
civil litigation where the United States is not a party.
3

The government’s letter responding to the subpoenas appears at ECF No. 80-1.

challenge the government’s objections but asks the Court to enter an order, consistent with the
Privacy Act of 1974, 4 directing the government to release the subpoenaed documents. In
pertinent part, the Privacy Act states that “[n]o agency shall disclose any record which is
contained in a system of records by any means of communication to any person, or to another
agency, except pursuant to a written request by, or with the prior written consent of, the
individual to whom the record pertains, unless disclosure of the record would be . . . (11)
pursuant to the order of a court of competent jurisdiction.”5
The government acknowledges this Court’s authority to order release of documents, and
seeks concomitant entry of a protective order limiting the dissemination of the documents it
produces. Defendants concur with the government’s proposed protective order. Having
reviewed the parties’ positions, the applicable law, and the government’s proposed protective
order, the Court will grant Plaintiff’s motion and direct the government to release the
subpoenaed documents pursuant to a protective order.6
Pursuant to 5 U.S.C. § 552a(b)(11), the Court finds the description of records sought in
the subpoenas Plaintiff served appear relevant to this litigation, and shall order the United States
to produce responsive documents. The Court also finds reasonable and will enter the
government’s proposed protective order, which has now been agreed to by the parties.

4

5 U.S.C. § 552a.

5

5 U.S.C. § 552a(b)(11).

6

The Court will not include in the Protective Order a provision allowing a non-party to
unilaterally refuse to disclose information, as the government has proposed. If the government
believes additional protection is required for documents sought in Plaintiff’s subpoenas, the
government may seek protection under Federal Rule of Civil Procedure 45.

2

IT IS THEREFORE ORDERED that pursuant to 5 U.S.C. § 552a(b)(11), the Bureau of
Prisons shall produce copies of records responsive to the subpoenas within ten (10) days of the
date of this order.
Dated this 13th day of April, 2018 at Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge

3