Stoneman v. Bear et al
MEMORANDUM OPINION AND ORDER directing that the Court will maintain the medical records under seal to allow Plaintiff to respond to this Order, if she so desires, by 5/12/2022; Defendants' 99 Second Amended Motion to Seal Exhibits Identified a s Numbers 4, 6, 7, and 8 to Their Amended Motion for Summary Judgment is DENIED to the extent detailed herein and GRANTED provisionally respecting the medical records awaiting Plaintiff's response, if any. Signed by Judge Frank W. Volk on 5/6/2022. (cc: counsel of record; any unrepresented party) (btm)
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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 5:21-cv-00147
C.O. BROWN individually,
and in her official capacity, C.O. JOHN
and JANE DOE I-X individually, and in
their official capacity; JOHN DOE, unknown
person or persons, WEST VIRGINIA DIVISION
OF CORRECTIONS AND REHABILITATION,
and C.O. BARE,
MEMORANDUM OPINION AND ORDER
Pending is Defendants C.O. Bare and C.O. Brown’s Second Amended Motion to
Seal Exhibits Identified as Numbers 4, 6, 7, and 8 to Their Amended Motion for Summary
Judgment [Doc. 99]. The Exhibits contain Plaintiff’s medical records and a facility video. Ms.
Stoneman’s medical records contain information following and prior to her incarceration. The
facility video depicts the booking area from multiple angles on the date of the alleged incident.
The common law right affords presumptive access to all judicial records and
documents. Nixon v. Warner Comms., Inc., 435 U.S. 589, 597 (1978); Stone v. University of Md.
Medical Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). Materials that fall within the common law
right may be sealed only if competing interests outweigh the public’s right of access. Public
inspection of court documents “is necessary to allow interested parties to judge the court’s work
product in the cases assigned to it.” LOC. R. CIV. P. 26.4(b)(1). The public’s First Amendment right
of access can only be overcome when “the denial [of access] is necessitated by a compelling
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governmental interest, and is narrowly tailored to serve that interest.” Globe Newspaper Co. v.
Superior Court, 457 U.S. 596, 606-07 (1982); Press-Enterprise Co. v. Superior Court, 478 U.S.
1, 15 (1986); Virginia Dept. of State Police v. Washington Post, 386 F.3d 567, 573 (4th Cir. 2004).
When a sealing request is made, the court “must determine the source of the right
of access with respect to each document,” and then “weigh the competing interests at stake.”
Washington Post, 386 F.3d at 576 (internal citation omitted). The Court must also (1) give the
public notice and a reasonable opportunity to challenge the request to seal; (2) “consider less
drastic alternatives to sealing;” and (3) if it decides to seal, make specific findings and state the
reasons for its decision to seal over the alternatives. Id. Defendants contend the public does not
have an interest in Ms. Stoneman’s medical records, and the facility video should be sealed,
inasmuch as public disclosure of the video could create security issues. [Doc. 100 at 3]. The public
has had notice of this motion, inasmuch as it was filed on the CM/ECF system on April 19, 2022. 1
In support of the motion to seal the facility video, Defendants rely upon W. Va.
Reg’l Jail & Corr. Facility Auth. v. Marcum, 799 S.E.2d 540 (W.Va. 2017). In Marcum, the West
Virginia Supreme Court of Appeals concluded a videotape of the cell extraction of an inmate was
not subject to disclosure under the West Virginia Freedom of Information Act. Id. at 548. Marcum
filed a civil action in state court against the regional jail for alleged injuries after a cell extraction.
The motion for consideration in this opinion is the second amended motion filed
concerning seal of exhibits attached to Defendants’ Motion for Summary Judgment, filed April
26, 2022. The first motion was filed April 19, 2022, [Doc. 94], and the revised motion was filed
April 21, 2022. [Doc. 95]. The second amended motion was filed after the Court denied the motion
and revised motion for failure to include a memorandum of law in support thereof. [Doc. 98].
Thus, the public has actually had notice of the motion since April 19, 2022, when the motion was
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The matter was removed to federal court. Through the discovery process, Marcum requested a
copy of the videotape depicting the extraction, and the regional jail agreed to disclose the videotape
subject to a protective order. Marcum refused, instead seeking the videotape under the Freedom of
Information Act (“FOIA”). The regional jail refused to disclose the videotape under FOIA,
claiming it was exempt under the West Virginia statute. Id. at 543. Marcum filed suit in state court
for a preliminary injunction and declaratory relief against the regional jail to obtain the videotape
under FOIA. The court held under W. Va. Code § 29B-1-4(a)(19), the applicable West Virginia
FOIA provision, that the disclosure of a videotape displaying the design of a facility and its
operational procedures could create security issues, such as inmate escape or harm to others. Id. at
548. Footnote 12 of Marcum reads, as follows:
We should note that, even though the videotape is exempt from disclosure under
FOIA, this does not preclude its disclosure under the discovery rules in a civil
lawsuit. See Syl. pt. 2, Maclay v. Jones, 208 W.Va. 569, 542 S.E.2d 83 (2000) (“The
provisions of this state's Freedom of Information Act, West Virginia Code §§ 29B–
1–1 to –7 (1998), which address confidentiality as to the public generally, were not
intended to shield law enforcement investigatory materials from a legitimate
discovery request when such information is otherwise subject to discovery in the
course of civil proceedings.”). . . . Such sensitive information may be disclosed in
a civil lawsuit because a trial court can impose restrictions on its dissemination and
use through a protective order. As we noted previously, the Regional Jail was
prepared to turn over the videotape under a protective order. Obviously our holding
does not remove this offer from the table.
Id. The court’s holding is applicable to FOIA disclosures. If the holding was not clear enough, the
footnote reiterates it only applies to disclosures under FOIA, not the civil discovery rules.
Here, the Court entered a Protective Order setting forth the terms for handling
confidential documents on September 9, 2021. [Doc. 20]. The West Virginia Division of
Corrections and Rehabilitation disclosed the videotape in discovery prior to its dismissal from the
case. [Doc. 100 at 2 – 3]. This method of disclosure for a facility videotape was implicitly endorsed
by the West Virginia Supreme Court of Appeals in Marcum, so Defendants’ reliance on that case
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to support its argument in favor of sealing is misplaced. Further, the Court’s discussion only goes
so far as the discovery process; it says nothing about the videotape’s inclusion as an exhibit to a
summary judgment motion, as it is here.
The United States Court of Appeals for the Fourth Circuit has previously held,
“[o]nce documents are made part of a dispositive motion, such as a summary judgment motion,
they ‘lose their status of being raw fruits of discovery.’” Rushford v. New Yorker Magazine, Inc.,
846 F.2d 249, 252 (4th Cir. 1988). In Virginia Dept. of State Police v. Washington Post, 386 F.3d
567 (4th Cir. 2004), the documents at issue related to an active, ongoing murder investigation,
which was reopened after a convicted person was pardoned for the same. The Virginia Department
of State Police disclosed the documents pursuant to a subpoena duces tecum and subject to a
protective order. The documents were later unsealed after the Washington Post published the
identity of the current suspect in the investigation. Id. at 571 – 73. Virginia later challenged the
order unsealing the documents after those documents were filed or addressed in summary
judgment filings. Id. at 576. Our Court of Appeals concluded, consistent with Rushford, sealing of
documents filed in connection with a motion for summary judgment is controlled by the First
Amendment’s presumptive public right of access standard, so Virginia was required to provide a
compelling governmental interest to keep the documents sealed. It further concluded Virginia’s
interest in protecting the integrity of the murder investigation after most of the information was
publicly disclosed was not a compelling governmental interest to override the constitutional right
of access. Id. at 578 – 79.
The First Amendment right of access is at issue here, and the compelling
governmental interest asserted by Defendants is the same security interest discussed in Marcum.
[Doc. 100 at 3]. The Court finds those security concerns insufficiently compelling to overcome the
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First Amendment right of access. The facility video at issue depicts the booking area and a gate.
Unlike the video in Marcum, this video does not depict secretive, extremely secure areas of the
facility where inmates are housed for long periods or engage in day-to-day activities. Instead, this
video shows a busy, less controlled area where inmates use the phone, correctional officers and
support staff handle paperwork, nurses administer medication, inmates walk around freely and
wait to be moved to housing, police officers enter and exit, among other activities not shown in
the video. The five cameras also do not show a large portion of the facility, but a large expanse of
the booking area itself from multiple angles.
In sum, the booking area is a commonly used, open area with which all inmates
would be familiar; and the videos depict the time and circumstances central to this action. The
security concerns identified in Marcum are not reproduced here. And the public’s interest in the
video depicting actions alleged in Ms. Stoneman’s Complaint outweighs Defendants’ desire to
prevent disclosure. Thus, Defendants have not presented a compelling governmental interest to
overcome the presumptive First Amendment right of access.
As to Ms. Stoneman’s medical records, Defendants state the medical records
contain documentation of medical care and information both following and prior to her
incarceration. Defendants contend these records are confidential pursuant to the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”). They further state the public does not have
a legitimate interest in accessing Ms. Stoneman’s medical records. [Doc. 100 at 4].
Because the medical records were attached to the motion for summary judgment,
the First Amendment standard applies. Ms. Stoneman provided her consent, in compliance with
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HIPAA, to the disclosure of her medical records in connection with this litigation. [Doc. 100 at 3].
HIPAA provides medical records may be used in a court proceeding if the patient provides her
consent. 42 U.S.C. § 290dd-2(c). Thus, since Ms. Stoneman has executed valid consent to disclose
her medical records, this is not a basis for sealing. Further, HIPAA, a statutory scheme, cannot
overcome the First Amendment presumption of access. Ms. Stoneman contends she sustained
several injuries from the Defendants’ alleged conduct. She has thus placed her medical condition
at issue. Her medical condition before and after incarceration is significant both on grounds of
causation and damages. Defendants have thus not demonstrated a compelling governmental
interest to keep these records under seal.
In an abundance of caution, however, the Court will maintain the aforementioned
medical records under seal to allow Plaintiff to respond to this Order, if she so desires, on or before
May 12, 2022.
Accordingly, the Court ORDERS Defendants’ Second Amended Motion to Seal
Exhibits Identified as Numbers 4, 6, 7, and 8 to Their Amended Motion for Summary Judgment is
hereby DENIED to the extent earlier stated and GRANTED provisionally respecting the medical
records awaiting Plaintiff’s response, if any. [Doc. 99].
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: May 6, 2022
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