Rivera v. Rendell et al

Filing 221

MEMORANDUM (Order to follow as separate docket entry) re 202 MOTION for Order filed by Roberto C Rivera, 200 MOTION for Order filed by Roberto C Rivera, 198 MOTION for Discovery filed by Roberto C Rivera. Signed by Honorable A. Richard Caputo on 3/16/17. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERTO C. RIVERA,
Plaintiff
v.
GOVERNOR ED RENDELL, et al.,
Defendants

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CIVIL NO. 3:CV-10-0505
(Judge Caputo)

MEMORANDUM
I.

Introduction
On March 5, 2010, Roberto Rivera, an inmate housed at SCI-Dallas, in Dallas,

Pennsylvania, initiated this action challenging the revocation of his Z Code (single cell status).
On September 21, 2015, the Court resolved Pennsylvania Department of Corrections (DOC)
Defendants’ motion for summary judgment. See Rivera v. Rendell, Civ. No. 3:CV-10-0505,
2015 WL 5569067 (M.D. Pa. Sept. 21, 2015). A single claim against a sole defendant
remains: Was Deputy Superintendent Walsh deliberately indifferent to Mr. Rivera’s serious
mental health needs in March 2009 when he failed to assign Plaintiff a Z Code upon releasing
him from the Restricted Housing Unit (RHU) to general population? Mr. Rivera was granted
the opportunity to conduct additional discovery related to Deputy Walsh’s reliance on the
opinions of his treating mental health professionals. (ECF No. 150, pp. 1- 2.)
Presently before the Court are Mr. Rivera’s three motions to compel concerning his
discovery posed to Deputy Walsh. (ECF Nos. 198, 200 and 202.) He does not argue that
Deputy Walsh failed to respond to his discovery requests, rather he argues the responses are

evasive and inadequate. (Id.) On December 22, 2015, Mr. Rivera was ordered to supplement
his discovery motions by identifying each discovery request in dispute as well as specifying
why he believes Deputy Walsh’s responses are evasive and incomplete. (ECF No. 207.) Mr.
Rivera filed his supplemental supporting briefs on January 12, 2016. (ECF Nos. 209 - 211.)
Deputy Walsh filed a singular opposition brief to all three motions. (ECF No. 213.) On March
16, 2016, Mr. Rivera filed a collective reply brief in support of all three motions. (ECF No.
216.)
For the reasons that follow, Mr. Rivera’s motions to compel will be granted in part and
denied in part.

II.

Standard of Review
Rule 37 of the Federal Rules of Civil Procedure governs motions to compel discovery.

Under Rule 37(a), a party may file a motion to compel discovery when the opposing party fails
to respond or provides incomplete or evasive answers to properly propounded document
request or interrogatories. See Fed. R. Civ. P. 37(a)(3)(B)(iii - iv). Pursuant to Fed. R. Civ.
P. 26(b)(1), a party “may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1).
The scope and conduct of discovery are within the sound discretion of the trial court.
In re Cendant Corp. Sec. Litig., 343 F.3d 658, 661-62 (3d Cir. 2003); see also McConnell v.
Canadian Pacific Realty Co., 280 F.R.D. 188, 192 (M.D. Pa. 2011) (“Rulings regarding the

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proper scope of discovery, and the extent to which discovery may be compelled, are matters
consigned to the Court’s discretion and judgment.”).
This discretion is guided, however, by certain basic principles. Thus, at the outset, it
is clear that Rule 26's broad definition of that which can be obtained through discovery
reaches only “non-privileged matter that is relevant to any party's claim or defense.”
Therefore, valid claims of relevance and privilege restrict the court's discretion in ruling on
discovery issues. Furthermore, the scope of discovery permitted by Rule 26 embraces all
“relevant information,” a concept which is defined in the following terms: “Relevant information
need not be admissible at trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.”
With these principles in mind, the Court turns to consider the various discovery
requests set forth in Mr. Rivera’s motions to compel.

III.

Discussion
A.

Mr. Rivera’s Motion to Compel Responses to his October 1,
2015, Request for Production of Documents (ECF No. 198).

As directed, Mr. Rivera provided the Court with a copy of his October 1, 2015, request
for production of documents and Deputy Walsh’s response. (ECF No. 209, pp. 9 - 16.)
Where Mr. Rivera’s document requests are similar, or redundant, they will be addressed
together.

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1.

Request No. 1: Disciplinary and Personnel Complaints
against Deputy Walsh.

Defendant Walsh correctly points out that the confidential and sensitive nature of
information contained in personnel files requires their disclosure to be limited. See Bracey
v. Price, Civ. No. 09-1662, 2012 WL 849865, at *2 - 3 (W.D. Pa. Mar. 13, 2012). However,
that does not mean such information is beyond discovery, where relevant. (Id.)
Here, Mr. Rivera does not seek Deputy Walsh’s complete personnel file, only those
portions related to disciplinary and personnel complaints lodged against him. He seeks this
information because it “will show the existence of every element essential to Plaintiff’s claim
of the Defendant Walsh’s deliberate indifference regarding the Plaintiff’s mental health needs
that bear the burden of proving at Trial, and establishes that Defendant Walsh’s participation
in the decision to recommend revocation of his Z Code Housing classification on March 20,
2009.” (ECF No. 209, p. 3.) Plaintiff’s motion to compel will be denied as he has not
demonstrated how disciplinary and personnel complaints, lodged by inmates or staff, would
shed any light on whether Deputy Walsh was deliberately indifferent to his mental health
needs on March 20, 2009, when not directing that he be placed in a single cell upon his
release from the RHU.

2.

Request Nos. 2, 3, 5, 9 and 10: Mental health document
provided to, and or relied upon by, Deputy Walsh when
making his March 2009 decision “recommending the
revocation of [Mr. Rivera’s] Z Code Housing classification.”

Requests 2, 3, 5, 9 and 10 all seek similar mental health documents relied upon by
Deputy Walsh in March 2009 when allegedly recommending the revocation of Plaintiff’s single
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cell housing assignment. (ECF No. 209, pp. 9 - 16.) Defendant Walsh identified the following
responsive documents: the December 16, 2008, Vote Sheet revoking his Z Code; a copy of
his grievance challenging the revocation; and a copy of the PRC’s March 2009 decision
concerning his release from the RHU.1 Defendant Walsh failed to identify any specific mental
health or other records relied upon in making his March 2009 decision stating that as he is
now retired, he does not have control or custody over Mr. Rivera’s mental health records.
First, to the extent Mr. Rivera seeks the wholesale disclosure of his mental health records,
his motion to compel will be denied. A large portion of Mr. Rivera’s mental health record was
produced in earlier discovery as well as in conjunction with the Defendants’ motions for
summary judgment. Next, the Court does not find the Defendant’s retirement a basis to avoid
identifying what, if any, documents he relied upon when making his March 2009 decision
concerning Mr. Rivera’s release to a double cell in general population. Therefore, Deputy
Walsh will be ordered to supplement his response to document request number 2. He shall
indicate whether he relied on any documents, including portions of Mr. Rivera’s mental health
records, when making his March 2009 PRC recommendation. To the extent any such
documents were reviewed, he shall specifically identify them and their current custodian. No
further supplementation of document requests 2, 3, 5, 9 or 10 will be ordered.

1

This information was also disclosed to Mr. Rivera in conjunction with the DOC’s motion for
summary judgment. See ECF No. 136-2, pp. 41, 62 and 63.

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3.

Request No. 4: Facts or data considered by Deputy Walsh
not to allow Mr. Rivera to receive mental health treatment at
SCI-Frackville.

Deputy Walsh responds that no such documents exist. Plaintiff seeks to compel a
further response because he “believes Defendant Walsh’s response to this request is not in
compliance with his request.” (ECF No. 209, p. 4.) However, he does not explain further how
Deputy Walsh’s response is not in compliance with his request. Without such information,
there is no reason for the Court to delve further into Deputy Walsh’s response. To the extent
that defense counsel argues that Mr. Rivera’s mental health treatment is not at issue in this
case, that is only partially true. The sole remaining claim relates to whether Deputy Walsh’s
March 2009 PRC decision to release Mr. Rivera from the RHU to a double cell in general
population was deliberately indifferent to his mental health needs. Mr. Rivera’s motion to
compel a further response to request number 4 is denied.

4.

Request No. 6: Documents demonstrating Mr. Rivera’s
treating mental health professional’s qualifications and
publications.

To the extent Mr. Rivera seeks the curriculum vitae of his treating mental health
providers, Deputy Walsh disavows possession or control of such materials. (ECF No. 209,
p. 14.) Mr. Rivera claims Deputy Walsh’s response that he is not in control or custody of such
documents to be “evasive and incomplete”. (Id., p. 4.) Plaintiff “believes Defendant Walsh
has access to obtain possession, custody and control” of the requested documents which
would show the “psychogist’ Psychiatrists (sic) allegedly relied upon for the decision of

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revocation of Z Code classification in 2009 was unreliable.” (Id.) As Mr. Rivera has failed to
demonstrate why he believes Deputy Walsh’s response is evasive or incomplete, the motion
to compel as to request number 6 is denied.

5.

Request No. 7: Other Instances Between 2005 and 2009
where Deputy Walsh “advised that a Prisoner’s Z Code be
relinquished.”

Deputy Walsh objects to this request arguing that it was unduly burdensome and
seeks the disclosure of privileged information which is not reasonably calculated to lead to
the discovery of admissible evidence. (Id., p. 15.) Mr. Rivera’s disagreement with this
statement makes it no less true. While Mr. Rivera asserts that it “can prove element[s] of
[his] claim” (Id., p. 5), he does not explain how. The Court agrees with Deputy Walsh that
disclosure of the requested information, in order to be even slightly relevant to these
proceedings, would implicate the privileged medical/mental health information of other
inmates. Mr. Rivera, a former Z Code recipient himself, is clearly aware of the various
reasons inmates are issued Z Codes. In Plaintiff’s case, his mental health issues
previously prompted the DOC to house him in a single cell. The disclosure of such
security/medical/mental health information of other inmates would violate the privacy
rights of these individuals. Additionally, the security concerns of releasing this type of
sensitive information, let alone to another inmate, far outweighs Mr. Rivera’s unspecified
“element[s]” he wishes to advance in this case. Rule 26(c) empowers the Court to issue
protective orders “which justice requires to protect a party or person from annoyance,

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embarrassment, oppression, or undue burden or expense.” That is the case here.
Accordingly, Mr. Rivera’s motion to compel Deputy Walsh to supplement his response to
this request is denied.

6.

Request No. 8: 2009 Central Office documents calling for
SCI-Dallas to increase its bed space by evaluating current
A Code and Z Code inmates.

Deputy Walsh asserts that he does not have custody or control over such Central
Office documents due to his retirement from the DOC. (Id., p. 15.) He also objects that
any such documents are protected by the deliberative process privilege.2 (Id.) Mr. Rivera

2

“The deliberative process privilege permits the government to withhold documents
containing ‘confidential deliberations of law or policymaking, reflecting opinions, recommendations
or advice.’” Redland Soccer Club, Inc. v. Dep’t of Army, 55 F.3d 827, 853 (3d Cir. 1995) (citation
omitted). The privilege is intended to encourage “the frank exchange of ideas and opinions” within
an agency, in order to promote the “quality of administrative decisions.” Id. at 854. The privilege,
however, is not absolute and can be overcome if the party seeking discovery shows sufficient
need for the otherwise privileged materials. Hickman v. Taylor, 329 U.S. 495, 511, S.C.t 385, 393,
91 L.Ed. 451 (1947). Fed. R. Civ. P. 34(b) requires a party objecting to a document request to
“state with specificity the grounds for objecting to the request, including the reasons” and “must
state whether any responsive materials are being withheld on the basis of that objection.” Fed. R.
Civ. P. 34(b)(2)(B) and (C). To properly invoke the privilege:
There must be a formal claim of privilege, lodged by the head of the
department which has control over the matter, after actual personal
consideration by that officer.
United States v. O’Neill, 619 F.2d 222, 226 (3d Cir. 1980) (quoting United States v. Reynolds, 345
U.S. 1, 7 - 8, 73 S.C.t 528, 532, 97 L.Ed. 727 (1953)) (additional citations omitted). Agency
counsel’s invocation of the privilege is inappropriate where there is “no indication ... that the
department heads made the type of personal careful examination which must precede the
invocation of the privilege.” O’Neill, 619 F.2d at 226. As Deputy Walsh has not properly supported
his assertion of the deliberative process privilege, the Court cannot properly evaluate its
application. No affidavit was provided in connection with the assertion of the privilege. No
documents were identified a falling within the privilege. As such, Defendant Walsh’s assertion of
(continued...)

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argues that Deputy Walsh’s response is “untrue” based on the November 4, 2008 email
from Superintendent Klopotoski to various SCI-Dallas staff, including Deputy Walsh,
concerning Central Office’s request that the institution find 80 additional beds by reevaluating “current Z coded inmates and A coded inmates”.3 (ECF No 209, p. 18.)
Although the Court does not find Deputy Walsh properly asserted the deliberative process
privilege with respect to the requested documents, for the purpose of compelling
discovery, the requesting party bears the initial burden of demonstrating its relevance to
its claim. Fed. R. Civ. P. 26(b)(1). Here Mr. Rivera has failed to show how the discovery
sought is relevant to whether Deputy Walsh was deliberately indifferent to his mental
health needs when releasing him from the RHU in March 2009 without a Z Code
designation. Moreover, The issue of Mr. Rivera’s Z Code revocation was resolved in the
Court’s September 2015 Memorandum and Order. See ECF No. 170, pp. 21 - 25. This
claim was dismissed due to Plaintiff’s failure to exhaust his administrative remedies. (Id.)
Thus, proof of staff’s motivation in December 2008 for rescinding his Z Code is irrelevant,
even if driven by a need to quickly find bed space within the facility as Mr. Rivera
suggests. Mr. Rivera has failed to demonstrate how Central Office’s December 2008
request to re-evaluate A and Z Code inmates is relevant to whether in March 2009 Deputy

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(...continued)
deliberative process will not be accepted.
3

Individuals serving sentences of 10 years or more and provided with a single cell are
given an “A Code” to differentiate them from “Z Code” inmates. See www.cor.pa.gov., 11.2.1,
Reception and Classification Procedures Manual, Section 5 — Single Cell (“Z” Code) and Double
Celling Housing.

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Walsh subjectively knew of and disregarded an excessive risk to his health or safety and
that his mental health needs were objectively serious when releasing him to a double cell
in general population. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979,
128 L.Ed.2d 811 (1994). Thus, Mr. Rivera’s motion to compel a further response to this
request is denied.

B.

Mr. Rivera’s Motion to Compel Responses to his October 5,
2015, Interrogatories (ECF No. 200).

On December 18, 2015, the Court requested Mr. Rivera to file a supplemental brief
in support of his various motions to compel. (ECF No. 206.) In that Order, Plaintiff was
directed to specifically identify why believed each disputed discovery request was
incomplete or evasive. (Id.) On January 5, 2016, Mr. Rivera filed a supplemental brief in
support of his motion to compel further responses to his October 2015 interrogatories,
specifically numbers 2 through 8. (ECF No. 210, p. 6.) Although he seeks supplemental
responses to interrogatories 2 through 8, he does not identify how any of Deputy Walsh’s
provided responses are incomplete or evasive. Rather, he simply states in a summary
fashion that they are “vague, inadequate, ambiguous and confusing.” (Id., p. 5.)
Nonetheless, the Court has examined the interrogatories and Defendant Walsh’s
responses. (Id., pp. 9 - 11.) While Mr. Rivera may disagree with the provided responses,
they are clear and specifically tailored to the relevant interrogatory. Because Mr. Rivera
has failed to identify how any individual interrogatory response is deficient, vague, evasive
or “confusing,” his motion to compel further supplementation will be denied.
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C.

Mr. Rivera’s Motion to Compel Responses to his October 15,
2015, Interrogatories (ECF No. 202).

Mr. Rivera claims Deputy Walsh’s responses to his second request for production
of documents are “evasive and incomplete.” (ECF No. 211, pp. 7 - 13.) In addition to
responding to each request, Deputy Walsh provides a summary of various objections he
incorporates with respect to each response. (Id., pp. 10 - 13.) As before, where possible,
the Court will examine similar requests collectively.

1.

Requests a, b: Documents relied upon by Deputy Walsh to
[revoke Mr. Rivera’s] Z Code on March 22, 2009.

While Deputy Walsh objects to these requests, he notes that the propounded
discovery exceeds the limits of this Court’s September 21, 2015 Order (ECF No. 171), and
is irrelevant to the remaining claim in this action, but does not specify how. (ECF No. 211,
p. 12.) Mr. Rivera claims the response is evasive and incomplete. (Id., p. 3.) He claims
the requested documents will help establish Deputy Walsh’s deliberate indifference to his
mental health needs, a burden he bears to prov e at trial. (Id.) He argues the information
will “establish Defendant Walsh’s participation in the decision to recommend revocation of
his Z Code Housing classification on March 20, 2009.” (Id.) In opposition to the motion to
compel, Deputy Walsh asserts that claims related to the revocation of Mr. Rivera’s Z
Code, which occurred in December 2008, were dismissed by the Court in September
2015. See ECF No. 171. This is true. Moreover, the extensive summary judgment
record is devoid of any evidence that Plaintiff’s Z Code was reinstated after that date prior

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to his RHU release. This is confirmed by Deputy Walsh’s interrogatory responses that
there are no facts or documents in existence regarding the Defendant’s involvement in
revoking Plaintiff’s Z Code in March 2009 as that occurred in December 2008. See ECF
No. 210, pp. 9 - 11. Finally, via summary judgment, Mr. Rivera received copies of
documents utilized by the DOC when revoking his Z Code in December 2008 as well as
the PRC’s March 2009 decision concerning his double celling within general population
upon his release from the RHU. Defendant Walsh confirms that “no facts or documents
exists” concerning the revocation of his Z Code in March 2009. (ECF No. 213.)
Accordingly, Mr. Rivera’s motion to compel further supplementation of this request is
denied.

2.

Request c: Copies of the Uniform Commercial Code for
Department of Corrections Employees.

Defendant Walsh argues that the requested information is irrelevant to the
remaining claim and exceeds the limits of the Court’s September 21, 2015, Order. (ECF
No. 211, p. 12.) Mr. Rivera counters that the requested document “will show the existence
of every element essential to Plaintiff’s claim that the (sic) Defendant Walsh’s deliberate
indifference regarding Plaintiff’s mental health needs ... and establishes that Def endant
Walsh’s participation in the decision to recommend revocation of his Z Code Housing
classifications on March 20, 2009.” (Id., p. 3.) Mr. Rivera has not demonstrated the
relevance of the UCC to the remaining claim, nor can the Court fathom one. His motion to
compel with respect to this request is denied.
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3.

Request d: Documents relied upon by Defendant Walsh in
2005 when directing Mr. Rivera met the criteria for Z Code
while housed on the institution’s Special Needs Unit.

Defendant Walsh objects to the relevance of this request as it concern the PRC’s
March 2009 decision to release Mr. Rivera to a double cell in general population. As
Defendant notes, the December 2008 revocation of Mr. Rivera’s Z Code is not at issue.
The events of 2005 are also not at issue. The sole issue is whether Deputy Walsh was
deliberately indifferent to his serious mental health needs in March 2009 when releasing
him from the RHU to general population without a Z Code designation. Thus, the
requested documents are not relevant. Moreover, as Defendant notes, many of the
requested documents were disclosed to Mr. Rivera during the course of summary
judgment. Accordingly, Mr. Rivera’s motion to compel a further response to this request is
denied.

4.

Request e: Copies of the DC-46 Vote Sheet and all
supporting documentation for determining the revocation
of Plaintiff’s Z Code.

Although the revocation of Mr. Rivera’s Z Code is no longer at issue in this case, a
copy of the December 16, 2008, Vote Sheet revoking his Z Code was produced in
connection with the DOC Defendants’ summary judgment motion. See ECF No. 136-3, p.
62. Other documents forming the basis for Superintendent Klopotoski’s decision to
remove Mr. Rivera’s Z Code were also disclosed at that time. Deputy Walsh further
responds that “[t]o the extent that Plaintiff seeks documents establishing that his Z Code

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was again revoked in March 2009, no facts or documents exist regarding such action.”
(ECF No. 213.) Mr. Rivera’s motion to compel will be denied as he has not demonstrated
that his Z Code was reinstated, and thus available to be revoked, in March 2009.
However, as noted earlier, to the extent Deputy Walsh relied on any medical or
psychological information when recommending Mr. Rivera’s double celling in general
population upon his release from the RHU in March 2009, those documents will be
provided to Plaintiff.
An appropriate Order follows.
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: March 16, 2017

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