Ajala, Mustafa-El v. Swiekatowski, William et al

Filing 44

ORDER granting defendants 32 Motion to to file pages 175-90 of exhibit 102 in camera. Defendants may have until January 8, 2015 to serve plaintiff Mustafa-El K.A. Ajala (formerly known as Dennis Jones-El) with pages 96-174 of exhibit 102 or to show cause why they should not be required to do so. If defendants do not serve the documents, plaintiff may have until January 20, 2015, to file a response. Signed by District Judge Barbara B. Crabb on 12/31/2014. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MUSTAFA-EL K.A. AJALA
formerly known as Dennis E. Jones-El,
ORDER
Plaintiff,
13-cv-638-bbc
v.
WILLIAM SWIEKATOWSKI, GARY BOUGHTON,
PATRICK BRANDT, MICHAEL DELVAUX
and WILLIAM POLLARD,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In 2007, pro se prisoner Mustafa-El K.A. Ajala was disciplined for various offenses
such as gang activity and conspiring to riot. In this case brought under 42 U.S.C. § 1983,
plaintiff alleges that the charges were fabricated to retaliate against him for filing a grievance
about prison conditions and to discriminate against him on the basis of race and religion.
In addition, he contends that defendants Michael Delvaux and Patrick Brandt, the hearing
officers at plaintiff’s disciplinary hearing, violated his right to due process because they were
biased against him.
Defendants have filed a motion for summary judgment, along with a motion to file
several documents in camera. Dkt. ##32 and 33. The parties are still briefing the summary
judgment motion, but their motion to file documents is ready for review.
Defendants wish to file in camera a number of confidential informant statements that
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were considered at the disciplinary hearing. Dkt. # Although plaintiff received summaries
of those statements, he did not get the statements themselves or the identities of the
witnesses. Delvaux Dec., dkt. #38, ¶ 11. In their motion, defendants argue that the
identities of the witnesses cannot be made public because the witnesses could be subjected
to retaliation from plaintiff or other prisoners who received conduct reports in part because
of the witnesses’ statements.
As defendants point out, the Court of Appeals for the Seventh Circuit has held that
prison officials are not required to disclose information to prisoners when doing so “would
entail a security risk.” Piggie v. Cotton, 344 F.3d 674, 679 (7th Cir. 2003). In response,
plaintiff quotes another statement from Piggie that “[w]e have never approved of a blanket
policy of keeping confidential security camera videotapes for safety reasons.” Id. However,
that statement is not helpful because a security camera videotape is not at issue in this case.
A number of courts, including the Supreme Court, have recognized the obvious
danger of disclosing the identities of confidential informants. Wolff v. McDonnell, 418 U.S.
539, 568-69 (1974) (“If [a prisoner] proposes to examine an unknown fellow inmate, the
danger may be the greatest, since the disclosure of the identity of the accuser . . . may pose
a high risk of reprisal within the institution.”); Cespedes v. Coughlin, 179 F.R.D. 122, 125
(S.D.N.Y. 1998) (denying motion to compel disclosure of identities of confidential
informants, noting that “[t]he possible consequences of revealing the identity of a
[confidential informant] could be disastrous” because it could “place the [confidential
informant’s] life in serious jeopardy”); Casey v. Lewis, 837 F. Supp. 1009, 1023 (D. Ariz.

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1993) (“[T]he safety of the confidential informants would be jeopardized by disclosure of
their identities.”); Cate v. Reynolds, 138 F.R.D. 95, 98 (E.D. Tenn. 1991) (denying motion
to compel because “revealing the identities of the informers would jeopardize their lives”).
Plaintiff submitted an affidavit in which he avers that he will not assault any of the
confidential informants and could not do so anyway because he is in segregation. Dkt. #43.
However, I am not aware of any authority suggesting that officials must take a prisoner’s
word for it in a situation like this one. Even if plaintiff is in segregation now, that would not
prevent him from taking action when he is released from segregation or from asking another
prisoner to take action on his behalf or prevent other prisoners implicated by the
confidential statements from taking action on their own.
Even if I assumed that a plaintiff’s need for disclosure could outweigh the security
concerns in some circumstances, plaintiff has not shown that the circumstances are present
in this case. In fact, plaintiff has not explained why he needs to know the identities of the
witnesses or why the summaries of their statements are not adequate. In my own review of
the evidence, it did not appear that the hearing officers at the disciplinary hearing relied on
any information in the statements that were not included in the summaries. Accordingly,
I am granting defendants’ motion to file the confidential statements in camera.
Plaintiff raised another issue in his opposition brief, which is that defendants declined
to serve on him approximately 80 other pages of documents that filed with the court. He
points to defendants’ certificate of service, which includes the following statement, “Please
note that the plaintiff will only be sent pages 1 through 95 of exhibit 102. He may view

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pages 96 through 174 at the institution upon request.” Dkt. #33-1.
Defendants did not include that issue in their motion and they did not otherwise seek
permission from the court to withhold those documents from plaintiff. In fact, defendants
provided no justification for that decision.
Under the Federal Rules of Civil Procedure, the general rule is that a party must serve
every other party with any documents filed with the court. Fed. R. Civ. P. 5(a)(1). Allowing
a party to “request” those documents does not qualify as service. Thus, if a party wishes to
deviate from the general rule, he must seek permission from the court. No party is entitled
to make a unilateral decision to change the rules. Accordingly, defendants may have until
January 5, 2015, to provide pages 96 through 174 of exhibit 102 to plaintiff or to show
cause why they should not be required to do so.
If defendants choose to argue that they are not required to serve the documents, they
should include in their response a proposed procedure for allowing plaintiff to review the
documents, including the name of the person from whom plaintiff should request the
documents, how quickly they will be provided, how many times he will be allowed to review
them and for how long.

ORDER
IT IS ORDERED that
1. The motion filed by defendants William Swiekatowski, Gary Boughton, Patrick
Brandt, Michael Delvaux and William Pollard to file pages 175-90 of exhibit 102 in camera,

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dkt. #32, is GRANTED.
2. Defendants may have until January 8, 2015 to serve plaintiff Mustafa-El K.A.
Ajala (formerly known as Dennis Jones-El) with pages 96-174 of exhibit 102 or to show
cause why they should not be required to do so. If defendants do not serve the documents,
plaintiff may have until January 20, 2015, to file a response.
Entered this 31st day of December, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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