Free Response to Motion - District Court of Arizona - Arizona

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Terry Goddard Attorney General Michele L. Forney, Bar No. 019775 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 E-mail: [email protected] Attorneys for Defendants

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Case 2:03-cv-02159-ROS-JRI Document 104 Filed 12/10/2007 Page 1 of 5

Timothy Lee Ward, No. CV 03-2159 PHX ROS (JRI) Plaintiff, v. Sgt. Carr, et al., Defendants. Defendants Carr and Stewart, through undersigned counsel, respond to Plaintiff's Request for Leave to File Documents Under Seal to the Court [Dkt. #103]. Plaintiff's motion should be denied because (1) his discovery requests and motion are premature as the Court has not yet entered a scheduling order and (2) filing documents "under seal" does not allow Plaintiff to review information regarding other inmates. I. FACTS Plaintiff Timothy Lee Ward is an inmate incarcerated within the Arizona Department of Corrections ("ADC") and is assigned ADC Inmate #148256. Pursuant to this Court's order dated October 2, 2007 [Dkt. #95], Plaintiff's remaining claims are that Defendants violated his due process and equal protection rights under the Fourteenth Amendment. On his due process claim, Plaintiff alleges that he was not given notice and a hearing prior to his placement in segregation. (Dkt. #75 at 3-4.) For his equal RESPONSE TO PLAINTIFF'S REQUEST FOR LEAVE TO FILE DOCUMENTS UNDER SEAL TO THE COURT [DKT. #103]

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protection claim, Plaintiff alleges that he was treated differently from other similarly situated inmates because he is a homosexual. (Dkt. #75 at 4.) Plaintiff has served interrogatories on both defendants as well as several requests for production of documents. (See exhibits 1 through 3.) In his requests for production of documents, Plaintiff seeks the following documents, among others: · A complete copy of Inmate Chad Daniels (ADC #159780) AIMS file to be filed under seal to the United States District Court. · A complete copy of Inmate Oscar Nester's (ADC #117565) AIMS file to be filed under seal to the United States District Court. · All movement sheets for Inmates Nester (#117565) and Inmate Daniels (#159780) to be filed under seal to the United States District Court. · All WIPP documents for Inmate Daniels (#159780) for 2001-2003. · All disciplinary records for Inmate Daniels (#159780) and Inmate Nester (#117565) to be filed under seal to the United States District Court. (See exhibit 3.) II. LEGAL ARGUMENT Under Fed. R. Civ. P. 26(d), no discovery is permitted until after the Court has issued its scheduling order or after an agreement of the parties. See also, FRCP 33(a) and 34(b). The Court has not yet entered a scheduling order in this matter and the parties have not entered into any agreements regarding discovery. Therefore, Plaintiff's

discovery requests and motion which concerns the form of Defendants' anticipated response to those discovery requests are premature. As such, Plaintiff's motion should be denied. Plaintiff's motion should also be denied because it seeks inappropriate relief. Plaintiff has requested that Defendants be permitted to file their responses to discovery requests under seal with the Court. Ordinarily, discovery responses are exchanged between the parties and are not filed with the court. See FRCP 33 and 34 (The word 2
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"serve" is used rather than "file.") See also Local Rule 5.2 (requiring the filing of notices of service of discovery requests and responses, not the actual requests and responses themselves). Plaintiff's request seeks that Defendants file their discovery responses instead of just serving them. Plaintiff has not shown good cause for

disregarding the customary process in this case. A request to file documents under seal is a request to keep documents out of public access. See e.g., Pintos v. Pacific Creditors Ass'n, 504 F.3d 792, 801 (9th Cir. 2007) ("The relevant standard for purposes of Rule 26(c) is whether good cause exists to protect the information from being disclosed to the public by balancing the needs for discovery against the needs for confidentiality."). However, documents that are filed under seal are still exchanged between the parties. Plaintiff admits in his motion that "it is illegal for the Plaintiff to possess documents concerning other inmates." A.R.S. § 31-221(e) provides that an inmate shall not have access to any prisoner records other than his own automated summary record file. It appears that Plaintiff seeks to circumvent A.R.S. § 31-221 by asking the Court to order Defendants to respond to the documents under seal. However, filing the

documents under seal should not allow Plaintiff to have access to information prohibited by law. The purpose of this statute's restrictions is to ensure against the security threat posed by the release of confidential records. Providing the records of other inmates that include the type of information requested poses a threat to the secure and orderly operation of the prison. Prison records identify inmates by name, number and housing location. File documents and especially intelligence information, provide information utilized by ADOC to ensure the safe and orderly operation of the prisons, such as synopses of criminal investigation work that is usually based on the type of information numbered above. A.R.S. § 31-221. Release of this information would pose a threat to the privacy of the other inmates as well as their safety and that of the staff. "Central to 3
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all other corrections goals is the institutional consideration of internal security within the correctional facilities themselves." Bell v. Wolfish, 441 U.S. 520, 546-547 (1979); Pell v. Procunier, 417 U.S. 817, 823 (1974). In this case, Plaintiff has not demonstrated how these requested documents are relevant to his case. In fact, his motion does not even identify which documents he wants to be filed under seal and how these documents will supposedly help him prove his case. Even if the documents are relevant, they should not be produced to Plaintiff directly. If it is appropriate for these materials to be produced at all, the proper method would be for Defendants to request that this court conduct an in camera review. Defendants have not yet obtained the documents in question and therefore cannot yet comment on their relevance. As stated above, Plaintiff's discovery requests are

premature. Therefore, Defendants have not yet considered whether to produce any of the documents requested or whether to object. Even so, to the extent that any documents requested are not objectionable, it should be left to Defendants, as those in whose custody the documents exist, to request appropriate protective orders or to request leave to submit them to an in camera review. Plaintiff's request for this Court to order Defendants to file documents under seal should be denied. III. CONCLUSION For the foregoing reasons, this Court should deny Plaintiff's Request for Leave to File Documents Under Seal to the District Court. RESPECTFULLY SUBMITTED this 10th day of December, 2007. Terry Goddard Attorney General

s/Michele L. Forney Michele L. Forney Assistant Attorney General Attorneys for Defendants 4
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Original e-filed this 10th day of December, 2007, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to: Timothy Lee Ward, #148256 ASPC - Florence - South Unit P.O. Box 8400 Florence, AZ 85232

s/Colleen S. Jordan Secretary to: Michele L. Forney IDS04-0306/RSK:G04-20640 #103936

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