Raul HERNANDEZ v. Matthew CATE, et al Case No. EDCV 11-00627 R(AJW) United States District Court, C.D. California, Western Division Filed December 12, 2013 Counsel Raul Hernandez, Represa, CA, Pro Se. Leena M. Sheet, CAAG - Office of Attorney General California Department of Justice, Los Angeles, CA, for Matthew Cate, et al. Wistrich, Andrew J., United States Magistrate Judge ORDER: (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; and (2) EXTENDING MOTION FILING DEADLINES *1 Plaintiff filed a motion to compel further responses to his first set of requests for production of documents (“Plaintiff's Motion”), along with his supporting declaration (“Plaintiff's Decl. I”) and attached exhibits. Defendants filed opposition to the motion (“Defendants’ Opp.”). Plaintiff filed a reply (“Plaintiff's Reply”), along with his supporting declaration (“Plaintiff's Decl. II”) and attached exhibits. Defendants timely served plaintiff with written responses and objections to his requests and also produced some responsive documents. Defendants contend that the motion should be denied in its entirety because plaintiff failed to meet and confer or file a joint stipulation as required by Local Rule 37. [Defendants’ Opp. 7-10]. Defendants also contend that plaintiff did not describe the documents he requested with “reasonable particularity” in his discovery requests, Fed. R. Civ. P. 34(b)(1)(A), and that if he had clarified his requests, such as by meeting and conferring with defendants’ counsel, she would have “attempted to obtain the records from the institution” and could have produced nonprivileged responsive documents. [Defendants’ Opp. 15]. Nothing in the record suggests that plaintiff was not diligent in attempting to frame and propound proper discovery requests, or that he acted in bad faith. Plaintiff is incarcerated, is proceeding pro se, and says that he has a limited understanding of English. He has attempted to clarify or narrow his vague or overbroad requests for purposes of his motion to compel. Therefore, it is reasonable to require defendants to produce responsive nonprivileged documents. Requiring defendants to produce a limited number of additional documents and extending the case management deadlines (which already have been extended twice) will not further delay resolution of this case or otherwise prejudice defendants. Insofar as plaintiff's motion is granted, defendants shall lodge, for in camera review, one complete unredacted set of responsive documents, and one complete set of such documents with proposed redactions to protect unwarranted disclosure of private or confidential information. Defendants also shall lodge a proposed protective order regarding any documents they are ordered to produce to plaintiff following in camera review.[1] If defendants contend that they already complied with this order in a supplemental production after this motion was briefed, or that no responsive documents exist or are within their possession, custody, or control, they may serve written objections to the requests on those grounds. Defendants shall comply with this order no later than January 10, 2014. A further order will issue upon the completion of in camera review. Discussion As to request 1, the motion is granted in part and denied in part. Request 1 seeks the complete prison personnel files of all defendants. Plaintiff's motion for leave to file his proposed first amended complaint was denied. [Order filed Nov. 21, 2013]. Therefore, only plaintiff's Fourteenth Amendment equal protection claims against certain defendants remain at issue in this action. See Order filed Jan. 1, 2013; Supplemental Report and Recommendation filed Jan. 16, 2013; Report and Recommendation filed Sept. 28, 2012]. Plaintiff alleges that while plaintiff was incarcerated at Ironwood State Prison (“ISP”), defendants intentionally discriminated against him by maintaining and implementing a policy pursuant to which plaintiff was placed on lock-down or modified program on account of his race or ethnicity. Plaintiff has not demonstrated that defendants’ entire prison personnel files are relevant or reasonably calculated to lead to the discovery of admissible evidence in this regard, or that the likely benefit of that discovery outweighs the burden and expense of its production. See Fed. R. Civ. P. 26(b)(1), (b)(2)(C). *2 In his motion and reply, however, plaintiff contends that he is not seeking any confidential identifying information or other private family or medical data concerning defendants or other inmates. [Plaintiff's Decl. I at 1]. Plaintiff argues that what he actually is seeking in Request 1 are prior complaints, grievances, personnel records, and disciplinary records relating specifically defendants’ involvement or role in racial profiling or race-based lock-downs, and that this discovery is relevant to establish knowledge and failure to act on the part of the supervisory defendants with respect to the specific incidents in 2009 and 2010 alleged in the complaint. [Pl's Motion 3; Plaintiff's Decl. I at 2; Plaintiff's Reply 3; Plaintiff's Decl. II at 3]. To the extent that plaintiff is seeking records of complaints or other documents publicly filed in federal court challenging practices similar to those alleged in his complaint, defendants’ objection that they are not obliged to produce those public records is well-taken. Accordingly, as to request 1, the motion is denied in that respect. See Plaintiff's Motion 4; Defendants’ Opp. 8]. Plaintiff identified one such action, Mitchell v. Felker, EDCV08-01196 TLN (EFB). Based on the public docket in that action, the Court takes judicial notice of the fact that the plaintiffs in that action, who are presently represented by counsel, challenge an alleged policy of race-based and excessive lock-downs in California prisons, that some of those claims survived the defendants’ motions to dismiss, and that motions for class certification, a preliminary injunction, and for summary judgment are pending. Plaintiff is free to request that the Court take judicial notice of particular public filings or court orders in that action if appropriate. Plaintiff does not attempt to narrow his request 1 by time period, but since plaintiff's claims arise from specific incidents in December 2009, February 2010, and October 2010, a time period limitation is necessary to balance the burden and benefits of this discovery. Accordingly, request 1 is construed as a request for production of the following documents: (1) Inmate appeals or grievances, including any appeal responses and requests for review through the third level of review, that: (a) were dated or submitted at the informal or first formal level of review between January 1, 2009 and December 31, 2010; (b) concern or reference racial or ethnic “profiling” or race-or ethnicity-based lock-downs or modified programs at ISP, regardless of the race or ethnicity involved in the lock-down or modified program, and excluding inmate appeals or grievances regarding any facility-wide lock-downs or modified programs that imposed identical restrictions on inmates irrespective of race or ethnicity; and (c) identify or refer to a defendant in this action OR were signed, reviewed, or responded to at any level by a defendant in this action; and (2) defendants’ prison personnel and disciplinary files concerning, describing, or relating in any manner to defendants’ involvement, in whatever capacity or context, in racial or ethnic profiling or race-or ethnicity-based lock-downs or modified programs during the period from January 1, 2009 through December 31, 2010. Contrary to defendants’ arguments, such complaints and disciplinary records can be relevant in a section 1983 action. See Carmona v. Toledo, 215 F.3d 124, 135 (1st Cir. 2000) (“Whether an individual officer had a record of claims of excessive force, improper searches, or other related misconduct, as well as pertinent performance and disciplinary history, is relevant to the allegations that the officer's conduct was linked to the supervisors’ failure to properly train, supervise, and discipline him.”); Wolfe v. Green, 257 F.R.D. 109, 113 (S.D.W.Va. 2009) (holding that police personnel files, complaint records, and similar information was relevant and probably admissible to prove arrestee's section 1983 supervisory liability claims against state troopers and their supervisors); Green v. Baca, 226 F.R.D. 624, 644 (C.D. Cal. 2005) (“In cases involving section 1983 claims, courts have repeatedly held that police personnel files and documents are relevant and discoverable.”) (citing Crawford v. Dominic, 469 F.Supp. 260, 263 (E.D. Pa.1979); Unger v. Cohen, 125 F.R.D. 67, 70 (S.D.N.Y. 1989)); Soto v. City of Concord, 162 F.R.D. 603, 614-615 (N. D. Cal. 1995) (holding, in a section 1983 action alleging excessive force, that the personnel files of the defendant officers were relevant); Mueller v. Walker, 124 F.R.D. 654, 658-659 (D. Or. 1989) (holding that police personnel files and internal investigation files regarding officers’ use of force could be relevant to show improper training or supervision and were discoverable). *3 Defendants contend that the requested discovery violates their privacy and confidentiality interests, and possibly those of inmates whose private information would incidentally be disclosed. Defendants also argue that a protective order alone will not effectively safeguard those interests in the prison setting, and that if production is ordered, the court should conduct an in camera review prior to ordering that any responsive documents be produced for plaintiff's review, and that plaintiff should be given access to any responsive documents produced for a limited period of time, under the supervision of his correctional counselor and pursuant to an appropriate protective order. While privacy and confidentiality interests do not categorically preclude discovery of responsive documents, defendants’ concerns are legitimate. Selective production that reflects a balancing of the competing interests involved and the use of redactions can prevent unwarranted disclosure of private and confidential information, along with a carefully crafted protective order. See Stewart v. City of San Diego, 2010 WL 4909630, at *2-*3 (S.D. Cal. Nov. 24, 2010) (noting that “[c]urrent case law suggests the privacy interests police officers have in their personnel file do not outweigh plaintiff's interests in civil rights cases,” but ordering that responsive documents be produced with redactions pursuant to an in camera document review); Soto, 162 F.R.D. at 616-618 (holding that the police officer defendants’ privacy interests in their personnel files did not outweigh the civil rights plaintiff's need for discovery of those documents, subject to issuance of a “tightly drawn” protective order). Defendants also contend that the official information privilege shields their personnel files from discovery. In civil rights cases brought under federal statutes, questions of privilege are resolved by federal law. Kerr v. U.S. Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192, 197 (9th Cir. 1975), aff'd on procedural grounds, 426 U.S. 394 (1976). “Federal common law recognized a qualified privilege for official information. Government personnel files are considered official information.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990)(citation omitted). To assert the privilege, the party resisting discovery must serve, as part of its written discovery responses: (1) an objection to each disputed discovery request that explicitly invokes the official information privilege; (2) a privilege log that identifies the assertedly privileged information in a manner that enables the requesting party to challenge assertion of the privilege; and (3) a declaration or affidavit, under oath or penalty of perjury, from a responsible official with personal knowledge of the matter making a specific, substantial threshold showing with respect to the elements of the privilege. See Bryant v. Armstrong, 285 F.R.D. 596, 604-605 (S.D. Cal. 2012); Ramirez v. County of Los Angeles, 231 F.R.D. 407, 410-412 (C.D. Cal. 2005); Soto, 162 F.R.D. at 613; Hampton v. City of San Diego, 147 F.R.D. 227, 230-231 (1993); Kelly v. City of San Jose, 114 F.R.D. 653 (N.D. Cal. 1987). “If the court concludes that a defendant's submissions are not sufficient to meet the threshold burden, it will order disclosure of the documents in issue. If a defendant meets the threshold requirements, the court will order an in camera review of the material and balance each party's interests.” Soto, 162 F.R.D. at 613. Defendants satisfied their burden to assert the privilege in their written objection to request 1 and made the required threshold showing by means of a sufficiently detailed privilege log and declaration. [See Defendants’ Opp. 4-5 & Exs. 2, 3 & 4]. Therefore, in camera review of any responsive documents is required to enable the court to “weigh the potential benefits of disclosure against the potential disadvantages.” Sanchez, 936 F.2d at 1033-1034. *4 Accordingly, plaintiff's motion to compel is granted in that defendants shall lodge for in camera review documents responsive to request 1 as construed by this order. As to request 2, the motion is granted in part and denied in part. Request 2 seeks “[a]ll written statements, originals or copies, identifiable as reports about the incidents” on the following dates made by ISP “employees, and/or witnesses”: December 4, 2009; February 6, 2010; October 7, 10, 12 and 20, 2010; December 21, 2010; May 9, 2011; and October 6, 2012. Notwithstanding their objections to request 2, defendants produced Program Status Reports, with redactions of confidential documents or confidential information, for the modified programs of December 4, 2009, February 6, 2010, and October 10, 2010, the three dates alleged in the complaint, as well as for modified programs on December 21, 2010 and May 9, 2011. [Defendants’ Opp. 5-7 & Exs. 3, 4]. In his motion, plaintiff contends that request 2 seeks, in addition to other responsive reports, “[r]eports made by Officer Rivera 2/W in the daily (log book) on October 12, 2010” and “Report of Officer Jones 3/W Kitchen D Yard on October 6, 2012.”[Plaintiff's Motion 4; Plaintiff's Decl. I at 2; Plaintiff's Reply 8]. Defendants object to producing reports, including that of Officer Jones, regarding the October 6, 2012 lock-down or modified program because it occurred two years after the events alleged in plaintiff's complaint and affected all inmates in Facilities C and D irrespective of their racial classification. [Defendants’ Opp. 7]. Plaintiff already obtained, and attached to his reply, a copy of the Program Status Report, Part B regarding the October 6, 2012 modified program. That documents states that “all inmates on Facility ‘C’ & ‘D’ are being placed on modified program ....” [Plaintiff's Reply, Ex. A at 2 (italics added)]. Defendants also assert that production of unredacted documents responsive to request 2 would violate the official information privilege. Defendants have made the required threshold showing for in camera review of privileged documents responsive to request 2. [See Defendants’ Opp. 6 & Exs. 2, 3 & 4]. Plaintiff contends that confidential reports, statements, or other documents (“confidential documents”) concerning or describing plaintiff or his custody classification are relevant to his claims that he was placed on lock-downs or modified programs on account of his race rather than because of his conduct, as defendants contend. [Plaintiff's Reply 5-6]. That contention has merit. Defendants’ objections to request 2 are overruled as to the October 12, 2010 reports, and plaintiff's motion to compel is granted in that defendants shall lodge responsive documents for in camera review. Defendants’ objections to request 2 are sustained as to the October 6, 2012 reports, and plaintiff's motion to compel is denied as to those reports, to the extent they have not already been produced. Defendants already have been ordered to produce one unredacted set of responsive documents for in camera review and one set with proposed redactions. With respect to responsive documents that defendants already produced to plaintiff with redactions, defendants are directed to lodge for in camera review both the redacted copies of responsive documents produced to plaintiff and unredacted copies of any responsive documents containing confidential reports, statements, or information concerning or describing plaintiff. *5 As to request 3, the motion is granted in part and denied in part. Request 3 seeks plaintiff's complete prison records. Notwithstanding their objections, defendants produced non-confidential documents from plaintiff's central file currently in the possession of the Office of the Attorney General for the period from January 2007 through April 2013, when defendants served the responsive documents. [Plaintiff's Motion, Ex. B at 5]. Defendants apparently concluded that plaintiff's motion did not challenge their response to request 3, so they did not address it in their opposition. [See Defendants’ Opp. 2 n.1]. However, plaintiff's motion and his reply raise the issue of whether defendants properly objected to the request and withheld responsive documents on the basis they contained confidential or privileged information. [See Plaintiff's Motion 2; Plaintiff's Decl. I at 2; Plaintiff's Reply 5-7]. Plaintiff's contentions about the relevance of confidential reports, statements, or evidence concerning or describing plaintiff or his custody classification apply to the confidential portions of plaintiff's central file. Plaintiff's motion is granted with respect to those documents, but only for the period from January 1, 2007 through December 31, 2010. Defendants are directed to lodge for in camera review one set of the redacted responsive documents produced to plaintiff and one set of unredacted responsive documents. Plaintiff's motion contains no supporting argument regarding requests 4, 5, and 6, and therefore it is denied as to those requests. See note 1, supra. As to request 7, plaintiff's motion is denied. Request 7 seeks “All written statements, originals or copies identifiable as reports about the incidents result on Hunger Strike” on following dates: June 15, 2011, July 10, 2011, August 26, 2011, and August 27, 2011.” [Plaintiff's Motion, Ex. B at 7; Plaintiff's Reply 4-5]. Defendants’ objection on the ground of relevance is sustained. Plaintiff has not demonstrated that reports from June 2011 through August 2011 concerning a hunger strike are relevant to any of his claims, which are based on events in late 2009 and 2010. In addition, defendants’ response states that after a diligent search and reasonably inquiry, they have no responsive documents in their possession, custody, or control. Therefore, plaintiff's motion is denied with respect to request 7. IT IS SO ORDERED. Footnotes [1] Plaintiff did not object to defendants’ proposals regarding a protective order or the procedure they proposed for plaintiff to review documents produced pursuant to a protective order.