Opinion
No. C 06-4229 MMC (PR).
March 31, 2008
On July 10, 2006, plaintiff, a California prisoner incarcerated at Salinas Valley State Prison ("SVSP") and proceeding pro se, filed the above-titled civil rights action under 42 U.S.C. § 1983. On December 12, 2006, after reviewing plaintiff's first amended complaint ("FAC"), the Court found plaintiff had stated five cognizable claims, against eleven defendants at SVSP, for the violation of plaintiff's constitutional rights.
On January 15, 2008, the Court issued an order: (1) denying defendants' motion to dismiss the FAC, which motion was based on the grounds that plaintiff had not exhausted his administrative remedies with respect to one of the claims and had not adequately alleged liability with respect to two of the named defendants; (2) granting plaintiff leave to file a second amended complaint and a supplemental complaint; and (3) directing defendants to file a dispositive motion or, in the alternative, a notice indicating defendants are of the opinion such a motion is not warranted. In that same order, the Court ordered defendants to respond to plaintiff's pending motions to compel production of documents and for sanctions. Defendants have filed an opposition to said motions, and plaintiff has filed a request for an extension of time to file a reply.
Defendants have also filed a motion for summary judgment, a motion to stay discovery pending a ruling on defendants' assertion of the defense of qualified immunity, and motions to file under seal a confidential document and the declaration attached thereto, both of which have been submitted in support of the motion for summary judgment. The confidential document is the same document that is the subject matter of plaintiff's motion to compel.
The Court now addresses the parties' pending motions.
DISCUSSION
A. Background
At issue in this case are plaintiff's allegations that in July 2005 he was placed on modified program status, i.e., "lockdown," at SVSP because he refused to participate in interviews concerning an inmate attack on two correctional officers, and also refused to sign a "128B" agreement to behave. Plaintiff claims that as a result of his being placed on modified program status he was deprived of outdoor exercise and other privileges afforded similarly situated inmates and was required to sign documents in violation of his political beliefs. Based on plaintiff's allegations the Court previously found that plaintiff has stated cognizable claims that defendants: (1) violated plaintiff's First Amendment rights by retaliating against him for refusing to "snitch" on other inmates or sign a form in which he "promises to behave"; (2) denied him access to the courts; (3) took his personal property in retaliation for exercising his First Amendment rights; (4) violated his Eighth Amendment right to be free from cruel and unusual punishment, by denying him visitation rights and yard access; (5) violated his Fourteenth Amendment rights to due process by not providing him with a hearing in connection with his placement on modified program status, and (6) violated his Fourteenth Amendment right to equal protection by discriminating against him on the basis of his race.
B. Plaintiff's Motions to Compel and for Sanctions
After the Court issued the order of service, plaintiff served defendants with a request to produce a confidential SVSP regulation, specifically, Operations Manual, restricted Volume V, § 55015, "Lockdown/Unlock Procedures" ("Operations Manual § 55015"). In response to plaintiff's request, defendants refused to produce the regulation, asserting the official information privilege. On July 19, 2007, plaintiff filed a motion to compel production of the regulation and a motion for sanctions. On February 15, 2008, defendants filed an opposition to the motions. On February 28, 2008, plaintiff filed a request for an extension of time to file a reply in support of his motion to compel; as the parties' moving and opposition papers are sufficient to allow the Court to rule on plaintiff's motion, the request will be denied.
Generally, parties may obtain discovery regarding any matter, not privileged, that is "relevant to the claim or defense of any party. . . ." Fed.R.Civ.P. 26(b)(1). "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. Discovery may be further limited by court order if "(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had amble opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit." Fed.R.Civ.P. 26(b)(2).
At the outset, plaintiff argues Operations Manual § 55015 is relevant to his claim that defendants relied solely upon said regulation to place him indefinitely on modified program status without a hearing because he refused to participate in interviews concerning an inmate attack on two correctional officers and to sign an agreement to behave. Specifically, plaintiff claims that he was never charged with a rules violation or provided a hearing under the California Code of Regulations before or during his indefinite placement on modified program status; he argues, therefore, that he requires access to Operations Manual § 55015 in order to assess whether the regulation authorized said placement, and whether such authorization runs afoul of constitutional requirements regarding the placement of prisoners on indefinite lockdown status.
Defendants argue that Operations Manual § 55015 is not relevant to plaintiff's claims because plaintiff alleges in his complaint that defendants retaliated against him by improperly placing him on modified program status, not that they failed to comply with the procedures set forth in Operations Manual § 55015.
The Court notes that defendants, when responding to plaintiff's request for production of documents, did not argue that Operations Manual § 55015 was irrelevant to plaintiff's claims. (Mot. Compel Exs. 3 4.) Rather, in a declaration submitted in support of defendants' response, Lt. W. Muniz, the Administrative Assistant in the Public Information Office at SVSP, stated that Operations Manual § 55015 is "potentially responsive to Plaintiff's discovery requests," but would not be provided because of the official information privilege. (Mot. Compel Ex. 6 at 2.)
The Court finds Operations Manual § 55015 is relevant to plaintiff's claims because it is "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). As noted above, plaintiff argues that he requires access to Operations Manual § 55015 in order to determine whether defendants actually followed the procedures set forth therein; whether defendants complied with said procedures is relevant with respect to at least two of plaintiff's claims, specifically, his claim that his placement on modified program status was retaliatory and his claim that such placement did not meet the requirements of due process.
Defendants initially refused to produce Operations Manual § 55015 to plaintiff on the ground the regulation was protected from production by the official information privilege. In support of their invocation of said privilege, defendants produced a declaration by Lt. W. Muniz, the Administrative Assistant in the Public Information Office at SVSP, attesting to the following: (1) Operations Manual § 55015 is classified as confidential by the California Department of Corrections and Rehabilitation and SVSP; (2) it is restricted from inmate viewing or public disclosure; (3) it contains information regarding prison policy for quelling disturbances and potentially violent events; (4) the procedures described therein instruct prison personnel about their duties during a lockdown of the prison; (5) if this type of information were disclosed it would provide plaintiff and other inmates with information necessary to avoid or thwart prison staff's attempts to secure the prison and maintain security; and (6) the disclosure of this information would hamper the ability of correctional staff to respond effectively to prison disorders and disruptive inmates with the minimal amount of force.
In his motion to compel, plaintiff concedes that defendants have met their threshold burden for invoking the official information privilege. See Kelly v. City of San Jose, 114 F.R.D. 653, 670 (N.D. Cal. 1987) (holding party invoking official information privilege in response to request for production of documents must meet threshold burden for invoking privilege by submitting, at time party files and serves response to discovery request, declaration or affidavit, under oath and penalty of perjury, from responsible official within agency who has personal knowledge of principal matters to be attested to in affidavit or declaration). Plaintiff argues, however, that production of Operations Manual § 55015 should not be denied, because the risks of disclosure can be minimized by a carefully drafted protective order.
Federal common law recognizes a qualified privilege for official information. Kerr v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir. 1975). To determine whether the information sought is privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages; if the latter is greater, the privilege bars discovery. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990). If the party invoking the privilege meets the threshold requirements for its proper invocation, the court will order an in camera review and offer the party the opportunity to submit brief and additional supporting material, and the party opposing invocation of the privilege will be offered the opportunity to reply thereto. Kelly, 114 F.R.D. at 671.
Here, plaintiff has shown Operations Manual § 55015 is relevant to his claims, and defendants have met the threshold requirements for proper invocation of the privilege; accordingly, the Court will grant in part and deny in part plaintiff's motion to compel. As discussed below, defendants have submitted Operations Manual § 55015 to the Court in support of their motion for summary judgment, and have asked the Court to file the regulation under seal. Thus, Operations Manual § 55015 is available to the Court for in camera review and need not be resubmitted by defendants for that purpose. Within thirty days of the date this order is filed, however, defendants shall file with the court and serve on plaintiff a proposed protective order and any additional supporting material. Within thirty days of plaintiff's receipt of said papers, he shall file with the court and serve on defendants a response thereto, at which time the matter will be submitted for the Court's review. After considering all matters pertinent to the dispute, the Court will enter its ruling.
Along with his motion to compel, plaintiff has filed a motion for sanctions, on the ground defendants improperly refused to produce Operations Manual § 55015. As the Court has found defendants have met the threshold requirements for proper invocation of the official information privilege, however, the motion for sanctions will be denied.
C. Defendants' Motions to File Documents Under Seal and to Stay Discovery
On March 13, 2008, defendants filed a motion for summary judgment, which motion includes an assertion of the defense of qualified immunity. In support of their motion for summary judgment, defendants submitted a copy of Operations Manual § 55015, and moved to file under seal said regulation and the attached declaration of Lt. W. Muniz attesting to its confidentiality. Additionally, on March 19, 2008, defendants filed a motion to stay all outstanding and further discovery pending a ruling on defendants' qualified immunity defense.
In view of the Court's ruling on plaintiff's motion to compel, defendants' motions to file under seal Operations Manual § 55015 and the attached declaration of Lt. W. Muniz will be granted, pending the Court's in camera review of Operations Manual § 55015. If the Court determines that Operations Manual § 55015 must be produced to plaintiff under the terms of a protective order, the Court will modify the order granting defendants' motions accordingly.
The Court will not rule on defendants' motion to stay discovery until plaintiff has been provided the opportunity to respond. Accordingly, plaintiff shall file a response to said motion at the time he responds to the proposed protective order and additional briefing that defendants have been ordered to submit to facilitate the Court's in camera review of Operations Manual § 55015. Defendants shall file a reply to plaintiff's response to the motion to stay discovery within twenty days of the filing of said response.
Finally, due to the outstanding discovery matters discussed in this order, all further proceedings with respect to defendants' motion for summary judgment will be stayed. Once the Court has ruled on the disclosure of Operations Manual § 55015 and defendants' motion to stay discovery, a renewed briefing schedule on the motion for summary judgment will be issued.
CONCLUSION
For the reasons stated above, the Court orders as follows:
1. Plaintiff's motion to compel is hereby GRANTED in part and DENIED in part. (Docket No. 35.) Plaintiff's motion for an extension of time to file a reply to defendants' opposition to the motion to compel is hereby DENIED. (Docket No. 43.)
2. Within thirty days of the date this order is filed, defendants shall file with the court and serve on plaintiff a proposed protective order and any additional supporting material relevant to the Court's in camera review of Operations Manual § 55015. Within thirty days of the date said papers are filed, plaintiff shall file with the court and serve on defendants a response thereto.
3. Together with plaintiff's response to defendants' proposed protective order and any additional supporting material, plaintiff shall file with the court and serve on defendants a response to defendants' motion to stay discovery. Within thirty days of the date said response is filed, defendants shall file with the court and serve on plaintiff a reply.
4. Defendants' motions to file under seal the copy of Operations Manual § 55015 and the attached declaration of Lt. W. Muniz submitted in support of their motion for summary judgment are hereby GRANTED. (Docket Nos. 48 49.) If the Court determines that plaintiff is entitled to disclosure of Operations Manual § 55015 under the terms of a protective order, the order granting said motions will be modified accordingly.
5. All further proceedings with respect to defendants' motion for summary judgment are hereby STAYED until the Court has ruled on the disclosure of Operations Manual § 55015 and defendants' motion to stay discovery.
This order terminates Docket Nos. 35, 43, 48 and 49 on this Court's docket.
IT IS SO ORDERED.