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Timothy Demond Barry v. T. Felker

December 13, 2010

TIMOTHY DEMOND BARRY,
PLAINTIFF,
v.
T. FELKER, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: George Foley, Jr. United States Magistrate Judge

Motion to Compel (#36)

ORDER

This matter is before the Court on Plaintiff's Motion to Compel F.R.C.P. 37 for Defendants J. Bishop and N. Albonico to Produce the Names of Officers Named in the Incident Reports on July 23, 2007 also Documents Pertinent to the July 23, 2007 Incident (#36), filed August 30, 2010 and Defendants Bishop and Albonico's Opposition to Plaintiff Barry's Motion to Compel (#38), filed September 14, 2010.

BACKGROUND

In his Complaint (#1), Plaintiff alleges that he was subjected to cruel and unusual punishment by Defendants in violation of his Eighth Amendment rights. Plaintiff alleges that on July 23, 2007, the correctional officers at the High Desert State Prison ("HDSP") demanded that Plaintiff and other inmates submit to a strip search. After refusing to be strip searched, Plaintiff alleges that he was handcuffed and placed on his knees by a correctional officer acting under the direction of Defendants J. Bishop and N. Albonico. Plaintiff complained that the asphalt was too hot after ten (10) minutes of kneeling. Plaintiff states that he could no longer take the pain and fell over. The correctional officers again placed him on his knees and left him in that position for almost an hour. Plaintiff alleges that RN Flaherty examined Plaintiff and told Plaintiff that he had second degree burns on his knees. . . . . . .

DISCUSSION

Plaintiff Timothy Barry requests that the Court order Defendants to further respond to interrogatories and requests for production that Plaintiff served on June 16, 2010. (#36). Defendants argue that they raised valid objections to many of Plaintiff's discovery requests and fully responded to the requests after raising the objections. (#38). The Court will now examine the discovery requests at issue and Defendants' responses to determine whether Defendants should be compelled to supplement their responses.

1. Interrogatories Served on Defendant J. Bishop Interrogatory No. 1: Objection upheld as vague.

Plaintiff requests that Defendant state High Desert State Prison's approved policy for how to deal with "an incident" in Facility C's exercise yard that involves a weapon. (#36 at 7). Defendant Bishop objects to the phrase "an incident" as vague.*fn1 (Id.)

The Court upholds Defendant's objection as to vagueness. Plaintiff's phrasing requests information on the policy for dealing with "an incident" involving a weapon. However, it is not clear whether "an incident" refers to the possession of a weapon, the use of a weapon, threatening someone with a weapon, the mere finding of a weapon on the ground, etc. Each "interrogatory should consist of a brief, simple, direct, and unambiguous question, dealing with one point only." Hilt v. SFC Inc., 170 F.R.D. 182, 187 (D.Kan. 1997) (citing William W. Schwarzer, et. al., CIVIL DISCOVERY AND MANDATORY DISCLOSURE: A GUIDE TO EFFICIENT PRACTICE, 4-5 to 4-7 (2d ed. 1994)). Interrogatories "should not seek narrative answers or attempt to argue, cross-examine, or impeach. They should be written so that the question and the expected answer can be understood easily when read at trial." Id. In this instance, it is unclear what type of incident is being referred to in Plaintiff's interrogatory and it is not specific enough for Defendant to be able to identify the information sought. Therefore, the objection is upheld as Defendant is unable to identify what specific policies for High Desert State Prison ("HDSP") are requested by Plaintiff.

Interrogatory No. 2: Objection overruled.

Plaintiff requests information on High Desert State Prison's approved policy for how to handle an incident in Facility C when a weapon is located in the exercise yard while inmates are still present. (#36 at 8). Defendant objects to the interrogatory as vague. (Id.) While Plaintiff's phrasing may not be precise as to the term "incident," the Court finds that the interrogatory is specific enough for Defendant to identify the information sought. The interrogatory is limited to a request for a statement of HDSP's policies where inmates are present in the exercise yard and the guards have detected a weapon. As a result, the Court will overrule Defendant's vagueness objection.

After raising the vagueness objection, Defendant identifies several sections of the HDSP Department Operation Manual and Operational Procedures as responsive to the interrogatory, but states that Defendant will not provide the information as it is confidential to inmates. (#36 at 8). According to Bishop, certain sections of the Department Operation Manual and HDSP Operational Procedures are confidential and may not be released to prisoners as it "would compromise the safety and security of the institution". (#38 at 3-4). However, Defendant has failed to cite any official policy, regulation, rule or statute that prohibits prisoners from viewing sections of the HDSP Operational Procedures. Through its own research, the Court determined that the California Code of Regulations allows for information "which would jeopardize the security of the institution" to be classified as confidential. 15 CA ADC § 3321(a)(2). However, state agents and corrections institutions may not merely refuse to respond to discovery requests by raising the allegation that a response would compromise the safety and security of the institution. See Jacobs v. Scribner, 2009 WL 3157533, *3-*4 (E.D.Cal. Sept. 25, 2009) (partially overruling the defendants' objection to producing confidential sections of the Department Operational Manual). Defendant must sufficiently demonstrate how allowing Plaintiff to view an official prison policy or procedure creates a specific safety or security threat for the institution.

Defendant's opposition fails to state any specific manner in which the prison would be compromised by providing Plaintiff with sections of the Department Operation Manual and HDSP Operational Procedures. In the opposition and the attached affidavit, Bishop recites the regulatory standard that "providing inmates with information contained in the specified sections would compromise the safety and security of the institution." Mere recitation of the regulatory language without any further explanation is not enough for the Court to find the materials at issue to be confidential. As Defendant has offered no description as to how disclosure of these specific sections could pose a safety or security threat, the Court finds that Defendant has not met his burden of ...


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