Free Order on Motion to Compel - District Court of Arizona - Arizona

SRM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Andre Almond Dennison, Plaintiff -vsConrad Luna, et al., Defendant(s) CV-03-2373-PHX-SRB (JI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Under consideration is Plaintiff's Motion to Compel and Motion for Sanctions, filed December 30, 2005 (#108). Defendants have responded (#114), and Plaintiff has replied (#125). Background - Plaintiff's claims are based upon an alleged assault against him by Defendant James on May 1, 2003. Plaintiff asserts that the assault was in retaliation for Plaintiff's grievances against James and lawsuits against other officers, including COIII Jennifer Thelen. Plaintiff claims that Defendants James, Fridenmaker, Nelson, Pinson, Hewitt, Emore, and Cooper filed false reports about the incident, and he claims that Defendants James and Fridenaker falsified records from a security reclassification hearing to say Plaintiff walked out of the hearing, when the hearing was actually postponed. Plaintiff claims Defendants Luna, Stewart and Schriro were deliberately indifferent to this mistreatment. Defendants deny the allegations and assert qualified immunity. Plaintiff sought (#79)and obtained (#91) a telephonic discovery conference with the Court in an effort to resolve various discovery disputes. Based upon that conference, Defendants were given an opportunity to supplement their discovery responses, and Plaintiff was given permission to proceed with the instant motion. (M.E. 10/20/05, #99.) Motion - Plaintiff's Motion to Compel seeks to compel Defendants to provide various documents in response to his requests for production, and to provide additional responses to
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various interrogatories. In addition, Plaintiff asks that the Court impose unspecified sanctions. Defendants respond that they have already produced all relevant and available documents or responses, or that additional documents pose security risks. Plaintiff replies that additional documents exist, and that security concerns do not justify refusing to respond to discovery. The individual discovery requests will be addressed separately.

1. Schriro Requests for Production Color Photos - Plaintiff's Request for Production number 1 to Defendant Schriro seeks "documents created involving the alleged May 1, 2003 incident." Plaintiff argues that Defendant has failed to produce available color photographs of Plaintiff and Defendant James taken on May 1, 2003. Defendants respond and Plaintiff concedes that the photographs were provided on January 4, 2006 (#110). Accordingly, the motion will be denied as moot as to this request. Unedited Videotape - Plaintiff also argues that Defendant Schriro has failed to produce an unedited copy of surveillance videotape, as required by his Requests for Production numbers 1 and 2. Plaintiff argues that his altercation with Defendant James began at 8:50 a.m. on May 1, 2003, but the videotape produced by Defendants does not begin until 10:34 a.m.. Plaintiff argues that he viewed the unedited videotape at his May 9, 2003 disciplinary hearing. Defendants respond that they have been unable to locate an unedited copy of the video tape. Plaintiff replies that he has proved the unedited tape exists. Rule 34(a) limits requests for production to items "which are in the possession, custody or control of the party upon whom the request is served." Documents or photographs which do not exsist cannot be in such "possession, custody or control." Accordingly, a party cannot be compelled to produce documents or photographs which do not exist. Steil v. Humana Kansas City Inc., 197 F.R.D. 445 (D. Kan. 2000); Alexander v. F.B.I., 194 F.R.D. 305, 310 (D. D. C. 2000); Wright & Miller, Fed.Prac.& Proc. § 2210 at 27 (2002). Movant has the burden of proof on this issue. U.S. International Union of Petroleum and Indus. Workers, AFL-CIO, 870 F2d. 1450 (9th Circ. 1989). Although Plaintiff asserts
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knowledge that Defendants once had the tape, Plaintiff has not established that Defendants currently have "possession' or "custody" of the sought after unedited tape. Plaintiff's unsubstantiated disbelief in Defendants' stated inability to locate the tape is insufficient to meet his burden of proof. Accordingly, the Court must accept Defendants' assertion that these records are not within their "possession, custody or control." While Plaintiff may find Defendants' inability to locate these records to be suspicious, the Court's experience teaches that other, innocent explanations are just as likely, if not more so. In any event, Plaintiff retains his ability to attempt to present evidence of the disappearance of the records, and to argue that an adverse inference should be drawn. But see Medical Laboratory Management Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 824 (9th Cir. 2002) (" When relevant evidence is lost accidentally or for an innocent reason, an adverse evidentiary inference from the loss may be rejected."). In any event, the Court is not free to speculate, but must look to Plaintiff to substantiate his claims that Defendants' failure to produce the records is a matter of choice rather than capability. Accordingly, the motion will be denied on this issue. Interview Recordings - Plaintiff's Request for Production number 3 seeks "all audio/video recordings of Plaintiff's and alleged witnesses statements." Plaintiff asserts that the interview of Plaintiff and some of the Defendants was conducted on May 1, 2003, and was recorded. Defendants respond that if such recordings were made, they no longer exist.

Plaintiff presents no evidence and therefore fails to meet his burden of proving that such recordings do currently exist. Accordingly, the motion will be denied on this issue. Investigations of Defendants - Plaintiff's Request for Production number 7 seeks "complete files on all investigations and disciplinaries on Defendants Luna, James, Emore, and Hewitt." Plaintiff seeks only to compel those records related to Defendant Emore.

Defendants assert inter alia that these records have been destroyed pursuant to ADOC's record retention policy. Plaintiff replies that any destruction occurred after his request was made, and that no such retention policy exists. Again, Plaintiff presents no evidence and therefore fails to meet his burden of proving that such recordings do currently exist.
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Accordingly, the motion will be denied on this issue.

2. Stewart Requests for Production Plaintiff's Deposition - Plaintiff's Request for Production number 1 to Defendant Stewart seeks a copy of Plaintiff's deposition. Plaintiff argues that defense counsel Carlotta Turman stipulated to provide a copy of the deposition. Defendants argue that their file reflects no such agreement and express the suspicion that Plaintiff has misinterpreted an agreement to allow Plaintiff to review a copy for transcription errors. Plaintiff argues that he cannot afford to pay for a copy of the deposition. Plaintiff fails to make a convincing case that an oral stipulation was made. In general, a party may not copy and distribute a deposition transcript without paying the stenographer the appropriate fees. Thus, Rule 30(f)(2) provides that "[u]pon payment of reasonable charges therefor, the officer shall furnish a copy of the transcript...to any party or to the deponent." Plaintiff offers no basis for requiring Defendants to bear this cost now, nor why they would have agreed to do so in the past. Moreover, Rule 29 provides that "the parties my by written stipulation ... modify other procedures governing or limitations placed upon discovery." (Emphasis added.) Plaintiff has failed to produce a written stipulation. Therefore, the motion will be denied on this issue. Department Orders - Pursuant to Stewart Request for Production number 6, Plaintiff seeks to be provided copies of ADOC Department Orders 601 (Administrative Investigations), 608 (Criminal Investigations), 706 (Incident Management) and 804 (Inmate Behavior Control). Plaintiff asserts that all of these policies will establish the existence of procedures for documenting incidents and investigations. Defendants have produced the publicly available portions of these policies, but have refused to produce specific sections (601.05-601.12, 608.04-608.09, 706, and 804.05 and 804.08) on the basis that they are restricted to avoid jeopardizing security and safety in the prisons. Plaintiff replies that Defendants have failed to identify the content of the omitted sections so as to justify an argument of security. There is no "prison security" privilege. Privileges in federal proceedings, particularly
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those asserting violations under 42 U.S.C. § 1983 are not governed by state law, but by federal law of privilege. Fed.R.Evid. 501. See generally 8 Fed. Prac. & Proc. Civ.2d § 2016. Federal courts have found privileges applicable to prison records, ranging from an "official

information privilege", e.g. King v. Conde, 121 F.R.D. 180 (E.D.N.Y. 1988), and an "executive privilege", Castle v. Jallah, 142 F.R.D. 618 (E.D. Va. 1992), to a "state secrets privilege", Pack v. Beyer, 157 F.R.D. 219 (D.N.J. 1993). But see Fed.Prac.&Proc., Governmental Privileges § 5664 (Secrets of State) and 23 Am. Jur. 2d Depositions and Discovery § 77 (1983) (State and Military Secrets) (opining that the "state secrets privilege" only applies to matters of national security). However, privileges are seldom absolute, but are subject to a weighing of benefits and harms. Generally when a governmental privilege has been asserted to bar disclosure the court should balance the public interest in the confidentiality of governmental information against the need of a litigant to obtain data, not otherwise available to him, with which to pursue [his] cause of action, and any privilege is qualified not absolute. See Kerr v. United States District Court, 426 U.S. 394 (1976). Plaintiff argues that the requested discovery will be of benefit because of the tendency of the requested policies to show the existence of documentation of the events which are the subject of Plaintiff's complaint. Defendants do not respond to this argument, nor do they provide any indication whether the undisclosed policies even address these issues, or whether redactions are possible to accommodate both parties' needs. Accordingly, the Court will direct Respondents to submit the omitted policies for in camera inspection, and permit the parties to supplement their briefs on this issue. Thelen's Visits to Prison Unit - Plaintiff's Request number 5 seeks the production of a "list [COIII] Jennifer Thelen's visits to Rynning Unit Prison (dates and times) from 2002 through present." Plaintiff argues that the requested records are relevant to showing that Defendants' assault on Plaintiff was in retaliation for Plaintiff's suit against COIII Thelen, by showing that the visits were social calls on the Defendants. Defendants imply that any such records would be prison visitation records, and argue that they would not be relevant because
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they would not show the persons visited or the nature of visits. Thus, Defendants argue that the records are not relevant to showing a relationship between Thelen and the Defendants. Plaintiff counters that the records will bolster his eyewitness testimony about the interactions between Thelen and the Defendants. Defendants do not argue that the existence of the alleged relationship between Thelen and the Defendants is not material and relevant to Plaintiff's case. They simply argue that the requested records are not determinative of that fact. However, to be relevant, evidence does not need to fully establish a party's contention. It need only show that it is more likely than not that the contention is true. See e.g. Williams v. Hernandez, 221 F.R.D. 414

(S.D.N.Y.,2004) (plaintiff's request for admission as to whether official was present was relevant to claim of sexual harassment by official, and thus discoverable). Establishing Thelen's presence on the prison unit would bolster Plaintiff's eyewitness claims of interactions with the Defendants, and foreclose the ability of Thelen or Defendants to deny her presence on the unit. However, this is only true as to visits up to the time of the alleged assault. Visits after that date would reflect only the relationship thereafter, and would not establish Defendants' motivations at the time of incidents complained of by Plaintiff. Accordingly, Plaintiff's motion will be granted on this issue, as to records in occurring in 2002 and in 2003until May 1, 2003.

3. Cooper Requests for Production Prisoner Library Workers - Plaintiff's Request for Production number 5 to Defendant Cooper requests the "names and last known physical addresses of the prisoners employed as library workers on May 1, 2003." Plaintiff argues that these witnesses can testify about the view from the prison library of the area where the alleged assault on Plaintiff occurred. Plaintiff argues this relevant to his claim that Defendant Cooper falsified her report on the incident because the area would not have been visible to Cooper from herlocation in the library.
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Defendants argue that providing location information to Plaintiff creates safety concerns about attempted assaults on the identified prisoners. That concern may be addressed as suggested by Plaintiff in his Reply. Defendants also argue that Plaintiff can question Defendant Cooper at trial about what she observed. However, Plaintiff is not obliged to rely upon the untested testimony of an opposing party. In reply, Plaintiff suggests that in lieu of being provided address information that the prison arrange for Plaintiff to interview these prisoners by phone, and that addresses be provided to the Court to permit the issuance of subpoenas for these witnesses to appear at trial. The latter requests is premature. Defendants other concern may be addressed in a variety of ways. Accordingly, Plaintiff will be granted relief on this request.

4. James Request for Production of Documents James Medical Records - Plaintiff's Request for Production Number 1 to Defendant James requested copies of James' medical records from May 1, 2003. Defendants assert that the records were produced on December 16, 2005. Plaintiff replies that he has not received the records. There being no apparent objection to the request, Plaintiff's motion will be

granted on this issue.

5. Luna Requests for Production Documents on Plaintiff's Grievances - Plaintiff's Request for Production number 1 to Defendant Luna seeks "all documents created by Defendant Luna in investigating Plaintiff's allegations of abuse by officers." Defendants respond that all requested documents in existence have been produced. Plaintiff replies that the assertion that records no longer exist is "implausible." Plaintiff has failed to meet his burden of showing that the documents are in Defendants' possession or control, and the motion will be denied on this issue. Documents on Investigation of Defendants - Plaintiff's Request number 3 seeks "all investigative documents/files of any investigations conducted regarding Defendant Emore, James, and Lt. Lewis, whether formal or informal." Defendants object to any request
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concerning Lt. Lewis, on the basis that Plaintiff has not previously pursued this request, that Plaintiff has not adequately identified Lt. Lewis, and that the request is overly broad in time. Plaintiff replies that there was only one male lieutenant named Lewis working at Rynning Prison unit in 2002-2003, and that inmates are not provided first names of prison officers. The Court notes that Lt. Lewis was identified in Plaintiff's Motion for Telephone Discovery Conference filed August 3, 2005 (#79), as well as Defendants' response (#82). Perhaps, armed with the gender and dates, Defendants will be able to supplement their responses. Plaintiff's motion will be granted on this issue. Fact-Finding Documents on Plaintiff's Grievances - Plaintiff's Request for Production Number 5 to Defendant Luna, filed May 12, 2005, seeks "all `fact-finding' documents created [inquiring] into Plaintiff's officer abuse allegations" as referred to by Defendant Luna in response to various requests for admissions. Defendants assert that no such documents exist. Again, Plaintiff has failed to meet his burden of showing that the documents are in Defendants' possession or control, and the motion will be denied on this issue.

6. Schriro Interrogatories Abuses of Power - Plaintiff's Interrogatory number 20 to Defendant Schriro asks whether various behaviors "would be considered abuses of power in violation of ADOC policies." Plaintiff argues that he had been subjected to the types of behavior identified, and that despite his notice to Defendants Stewart and Luna of the behavior, they did nothing. Defendants argue that this information is not relevant or likely to lead to admissible evidence. Plaintiff replies that the request is relevant to allegations in Count I whether Defendants Luna and Stewart were deliberately indifferent to Plaintiff's safety, because it would show that the behaviors were violations of ADOC policy, and therefore establish "the level of deliberate indifference the Defendants exhibited to Plaintiff's safety." The relevant issue is whether the behaviors raised a risk substantial risk of significant injury, not whether they were violations of ADOC policy. However, presumably, at least some
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ADOC policies are directed at insuring inmate safety.

"The more a statute or regulation

clearly mandates a specific course of conduct, the more it furnishes a plausible basis for inferring deliberate indifference from a failure to act, even without any specific knowledge of harm or risk." Doe v. New York City Dept. of Social Services, 649 F.2d 134, 146 (2nd Cir. 1981). See also Fargo v. City of San Juan Bautista, 857 F.2d 638, 642 (9th Cir. 1988) (the fact that officer violated police procedures is relevant in determining the existence of gross negligence for finding due process violation), abrog'n on other grounds recogn'd L.W. v. Grubbs, 92 F.3d 894, 897 (9th Cir. 1996). Plaintiff's motion will be granted on this issue, provided that the request is only relevant insofar as it relates to the policies in existence at the time that Plaintiff complained to Defendants Luna or Stewart of the behaviors. Retaliatory Behaviors - Plaintiff's Interrogatory number 21 seeks the same response as Interrogatory number 20, but simply asks whether the behaviors would be considered retaliatory and therefore in violation of ADOC policies. For the same reasons, Plaintiff's motion will be granted on this issue as well. Schriro Job Failures - Plaintiff's Interrogatory number 24 asks whether Defendant Schriro has "ever been suspended from any of your job positions for failing to perform your responsibilities/duties." Plaintiff contends that this his relevant to his failure to supervise claims. Defendants point out that Defendant Schriro was not a participant in the events complained of by Plaintiff and is a party only because she was substituted in for Defendant Stewart in his official capacity as Director of ADOC. Plaintiff replies that Defendant Schriro had taken her position of Acting Director of Prison Operations for ADOC prior to May 1, 2003. However, Plaintiff's Complaint does not assert any personal misconduct by Defendant Schriro. Similarly, Plaintiff's Response (#122) to the Defendants' motion for summary judgment asserts failure to supervise claims only against Defendants Luna and Stewart. Plaintiff's motion will be denied on this issue.
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7. Stewart Interrogatories Investigations of Luna - Plaintiff's Interrogatory number 12 to Defendant Stewart asks whether "Defendant Luna [has] ever been investigated for failing to adequately perform his duties/responsibilities," and then asks for a variety of information about such investigations. Plaintiff argues that this information is relevant to the failure to supervise claim in Count I. Defendants argue that the information is not relevant. Plaintiff argues that a pattern of deliberate indifference would be relevant. Federal Rule of Evidence 404(b) provides that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." However, Rule 406 provides that "[e]vidence of the habit of a person . . . is relevant to prove that the conduct of the person . . . on a particular occasion was in conformity with the habit or routine practice." The Advisory Committee Notes, quoting McCormick, § 162, p. 340, describes habit as "one's regular response to a repeated specific situation." Plaintiff's request is overly broad to the extent that it seeks information on any investigation of "failing to adequately perform." The only relevant failures would be those concerning responses to prisoner complaints about abuse by prison officials, i.e. the same type of conduct of which Plaintiff complains about in Count I. To that limited extent, Plaintiff's motion will be granted on this issue. Custodians of Videotape - Plaintiff's Interrogatory number 13 asks "[w]ho would be responsible for maintaining videotape evidence for possible criminal

investigation/prosecution, obtained at an ADOC prison." Plaintiff contends that this request is relevant to the missing videotape. Defendants respond that each ADOC facility has different people with custodial responsibilities, and that identifying the responsible parties cannot recreate the missing videotape. Plaintiff replies that he is trying to himself locate the missing videotape, and acknowledges that his request focuses on those potentially responsible for that particular videotape. Plaintiff's argument is persuasive. Defendants argue that Plaintiff can ask for reasonable inferences to be drawn from the missing footage. However, as recognized in Medical Laboratory Management Consultants
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v. American Broadcasting Companies, Inc., 306 F.3d 806, 824 (9th Cir. 2002), "[w]hen relevant evidence is lost accidentally or for an innocent reason, an adverse evidentiary inference from the loss may be rejected." Thus, the particulars of the loss of the videotape can be meaningful to the inference to be drawn. Plaintiff's motion will be granted as to this issue, subject to it's limitation to those who would have responsibility for the missing videotape.

8. Sanctions Plaintiff seeks "appropriate" sanctions against Defendants. Rule 37(a)(4) provides that if a motion to compel is granted, "the court shall, after affording an opportunity to be heard, require the [non-responsive] party . . . to pay to the moving party the reasonable expenses incurred in making the motion . . . unless the court finds that . . . the opposing party's . . . response . . . was substantially justified." Given the inartful, albeit apparently not ill-willed, breadth of Plaintiff's requests, and the difficulty of balancing the competing concerns of prison security, the Court finds that Defendants' responses were substantially justified. Accordingly, the Court declines to grant sanctions.

IT IS THEREFORE ORDERED that Plaintiff's Motion to Compel and Motion for Sanctions, filed December 30, 2005 (#108) is GRANTED, as follows: 1. Within ten days of the filing of this Order, Defendants shall submit under seal, for an in camera review, Department Orders 601.05-601.12, 608.04-608.09, 706, and 804.05 and 804.08, and shall file and serve on Plaintiff a supplemental brief on their basis for refusing to produce these documents to Plaintiff. Plaintiff shall have ten days from the service of such supplemental brief to respond thereto. 2. Within twenty days of the filing of this Order, Defendants shall produce visitation records reflecting COIII Thelen's visits to the Rynning Unit in 2002 and in 2003 through May 1, 2003. 3. Within ten days of the filing of this Order, Defendants shall serve on Plaintiff a list
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of inmates working in the prison library on May 1, 2003.

Plaintiff shall have ten days

thereafter to serve on Defendants letters to those inmates inquiring about Defendant Cooper's ability to view the scene of the alleged assault, and directing that any responses be returned to Plaintiff through defense counsel. Defendants shall promptly deliver those letters to the inmates, collect any responses provided, and promptly forward them to Plaintiff. 4. Within ten days of the filing of this Order, Defendants shall serve on Plaintiff copies of Defendant James' medical records for his injuries from the May 1, 2003 incident. 5. Within twenty days of the filing of this Order, Defendants shall serve on Plaintiff supplemental responses to Plaintiff's Request for Production number Three to Defendant Luna, including investigations prior to May 1, 2003 of a male lieutenant Lewis employed at Rynning Unit in 2002-2003. 6. Within ten days of the filing of this Order, Defendant Schriro shall respond to Plaintiff's Interrogatories filed May 12, 2005, numbers 20 and 21. 7. Within ten days of the filing of this Order, Defendant Stewart shall respond to Plaintiff's Interrogatories filed May 12, 2005, number 12, to the extent that the subject investigations concern Defendant Luna's responses to prisoner complaints about abuse by prison officials, and number 13 to the extent that the "videotape" would be the type of videotape produced on May 1, 2003 on the Rynning Unit, of the type of incident about which Plaintiff complains.

DATED: June 16, 2006
S:\Drafts\03-2373-108o Order 06 04 03 re MCompel.wpd

_____________________________________ JAY R. IRWIN United States Magistrate Judge

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