Free Order on Motion to Seal Document - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Gerald Byerly, Plaintiff, vs. Deputy Warden; et al., Defendants.

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No. CIV 04-323-PHX-FJM (GEE) ORDER

Pending before the court is a discovery motion filed by the plaintiff on October 13, 2005. [doc. # 71] The defendants filed a response and the plaintiff filed a reply. The plaintiff in this case, Byerly, brings an action pursuant to 42 U.S.C. § 1983. He claims he was injured when he was indiscriminately placed in an intake cell with 13 other inmates and was assaulted because of the nature of his crime. The case has been referred to Magistrate Judge Edmonds for all pretrial matters pursuant to Local Civil Rule 72.2. Rules of Practice of the U.S. District Court for the District of Arizona.

Discussion The plaintiff moves that this court order the defendants to submit certain documents to the court in unredacted form so the court can analyze their relevance to the underlying action. These documents describe the inmates who were placed in the intake cell with
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Byerly. Specifically, they detail which inmates are members of a Security Threat Group (STG) (i.e., gang members) and whether these inmates were listed on Byerly's Do Not House With list (DNHW list). Byerly apparently intends to prove he was housed with individuals that the defendants knew were dangerous gang members and/or individuals already known by the defendants to pose a threat to Byerly because they were on his DNHW list. Byerly does not explain what will happen if the motion is granted and the documents are delivered to the court. Presumably, he intends to file a motion to compel their disclosure if the court decides the documents are relevant. Byerly lists the documents he would like disclosed to the court as follows: (1) the names of the thirteen prisoners housed with him; (2) the names on his DNHW list as of 9/25/2003; (3) Arizona Department of Corrections documents ## 4-8, 11-13, 16, 23-26, 28-30. In fact, list (1) and documents ## 4, 23-26 and 28-30 have already been disclosed to Byerly in unredacted form. Byerly believes they should be disclosed to the court so the court can better analyze the remaining documents which have been disclosed to Byerly only in redacted form. List (2) has not been disclosed. The defendants argue STG affiliation is very sensitive information and its disclosure could adversely affect the safe and secure operation of the prison system. Therefore, the defendants redacted some of these documents in its disclosure to Byerly. The defendants maintain list (2) does not exist. Apparently, a prisoner's DNHW list is only kept in its current updated form, and lists from earlier times are not preserved. The defendants further argue the motion should be denied because the court does not have the expertise to properly analyze the documents. As a compromise, the defendants offered to provide an affidavit from the Department of Corrections Protective Segregation Administrator that none of the individuals housed with Byerly in the intake cell had any STG affiliation. Further, this individual would provide an affidavit that none of the individuals in the intake cell were on Byerly's DNHW list as it existed on 9/25/2003. Apparently, the Administrator can examine each inmate's record and determine if Byerly was ever placed on that inmate's DNHW list. This placement would -2Case 2:04-cv-00323-FJM Document 76 Filed 11/16/2005 Page 2 of 3

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have triggered an identical placement of that inmate on Byerly's list. Byerly has also requested information about a particular inmate. The defendants propose to provide an affidavit detailing whether/when this individual was placed on Byerly's DNHW list. Byerly rejected the defendants' proposal. He argues the documents already disclosed by the defendants indicate some of the inmates housed with Byerly on the day of the assault were indeed members of the STG Mini Park Locos or the Aryan Brotherhood. Accordingly, the defendants' proposed affidavit to the contrary is surely suspect. The court concludes the defendants' proposal is sound. It allows the plaintiff to pursue his discovery in a manner that does not compromise prison security. Moreover, as the defendants accurately point out, the court has no particular expertise in analyzing documents from the Arizona Department of Corrections. Unless there is reason to doubt the veracity of the defendants' affiant, and on this record there is none, the plaintiff is better off relying on the analysis of an expert rather than on the good intentions of the court. Finally, the attached documents do not convince the court that the defendants' proposed affidavits are likely suspect. At best, the attached documents show that some of the inmates housed with Byerly were later found by the defendants to be members of an STG. They do not show Byerly was housed with gang members who were known to be such by the defendants on the day of his assault. Accordingly, IT IS ORDERED that the discovery motion filed by the plaintiff on October 13, 2005, is GRANTED IN PART. [doc. # 71] The defendants should provide the plaintiff with the affidavits discussed herein. DATED this 16th day of November, 2005.

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