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Tommy Ray Brown v. G. Marshall

February 28, 2011

TOMMY RAY BROWN PLAINTIFF,
v.
G. MARSHALL, ET AL., DEFENDANTS.



ORDER

Plaintiff is state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This matter is before the court on plaintiff's motion to compel further discovery responses and for sanctions.

This action is proceeding on plaintiff's claim that defendants Gore, Marshall, McDonald, Quezada, Runnels, Statti, Vanderville and Wong violated his Fourteenth Amendment due process rights in connection with a disciplinary conviction that resulted in imposition of a 48-month term in a security housing unit (SHU). See Order filed September 4, 2009.*fn1 By the instant motion, plaintiff seeks to compel further responses from defendant Marshall to interrogatories 1, 2, 3, 5 and 6 of plaintiff's interrogatories and to requests 1 through 5 of plaintiff's first request for production of documents; from defendant Statti to request 1 of his first request for production of documents; from defendant Vanderville to requests 4 and 5 of his first request for production of documents; from defendant Wong to request 3 of his first request for production of documents; from defendant Runnels to request 1 of his first request for production of documents; and from defendants Marshall, Statti and Vanderville to request 1 of his second request for production of documents. Plaintiff also seeks $100.00 in monetary sanctions.

Rule 37 of the Federal Rules of Civil Procedure provides for motions to compel further responses to discovery requests. Further responses to "an evasive or incomplete disclosure, answer, or response" may be ordered. See Fed. R. Civ. P. 37(a)(3).

As noted above, plaintiff seeks further responses to five interrogatories in the first set of interrogatories served on defendant Marshall. The interrogatories and defendant Marshall's responses are as follows:

Interrogatory No. 1: List the exact date, time, and place the confidential informant alleged plaintiff conspired with other alleged co-conspirators to murder peace officers?

Response to Interrogatory No. 1: Defendant objects on the grounds that it is vague as to time and institution. Without waiving these objections, and assuming plaintiff is requesting the time and location Plaintiff conspired with other co-conspirators to murder correctional staff in connection with the disciplinary charge for Log No. C-05-04-005, Defendant responds that Plaintiff conspired with other co-conspirators at High Desert State Prison, Facility C, during the month of January 2005.

Interrogatory No. 2: List the exact statement that the Confidential Informant alleged plaintiff made when plaintiff supposedly agreed to part of conspiracy plot to murder peace officers at (H.D.S.P.) Response to Interrogatory No. 2: Defendant objects to this request on the grounds that it is vague and ambiguous as to time, and as to the term "confidential informants," and it calls for information protected by the official information privilege. Based on these objections Defendant will not respond to this request. Interrogatory No. 3: List the part of the alleged conspiracy plot that the Confidential Informant stated plaintiff planned. (Which part of the conspiracy plot did plaintiff plan?)

Response to Interrogatory No. 3: Defendant objects to this request on the grounds that it is vague and ambiguous as to time, and as to the term "confidential informants," and it calls for information protected by the official information privilege. Based on these objections Defendant will not respond to this request. Interrogatory No. 5: List how many teir notes (kites) that was received by prison officials from confidential informants "that were allegedly written by plaintiff."

Response to Interrogatory No. 5: Defendant objects to this request on the grounds that it is vague and ambiguous as to time, and as to the term "confidential informants," and it calls for information protected by the official information privilege. Based on these objections Defendant will not respond to this request. Interrogatory No. 6: List how the confidential informant supposedly had first hand information of plaintiff's alleged involvement in the conspiracy to murder peace officers plot Response to Interrogatory No. 6: Defendant objects to this request on the grounds that it is vague and ambiguous as to time, and as to the term "confidential informants," and it calls for information protected by the official information privilege. Based on these objections Defendant will not respond to this request.

Attachment 2 to Plaintiff's Motion to Compel, filed April 14, 2010.

Plaintiff asserts that the information he seeks by these interrogatories is relevant to his contention that his due process rights were violated in connection with the disciplinary proceedings because (1) the charges did not list the time, date and place of the alleged criminal act; (2) the specific alleged criminal act he committed was not disclosed; (3) the information sought by interrogatory no. 2 is relevant to whether prison officials had first hand information of plaintiff's involvement or whether the charges were arbitrary; (4) the information sought by interrogatory no. 5 will support plaintiff's contention that prison officials falsified documents; and (5) the information sought by interrogatory no. 6 may show whether prison officials relied on second hand information to convict plaintiff of the disciplinary charges.

In opposition to the motion, defendants contend that defendant Marshall properly asserted the official information privilege in response to these requests, that disclosing the confidential information sought by these requests would endanger prison security, and that the information plaintiff seeks is not relevant to his challenge to the disciplinary conviction which need only be supported by "some evidence."

In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court explained that "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Id. at 556. Under Wolff, the inmate must receive: (1) advance written notice of the disciplinary changes*fn2 ; (2) an opportunity to call witnesses and present documentary evidence in his defense, where consistent with institutional safety and correctional goals; and (3) a written statement by the factfinder of evidence relied on and the reasons for disciplinary action. Superintendent, Mass. Correctional Ins. v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418 U.S. at 563-567). While an inmate has the right to present evidence in his defense, the Supreme Court found that an inmate does not have the right to confidential, irrelevant, or unnecessary information, see Wolff, 418 U.S. at 556, and the opportunity to call witnesses and present documentary evidence is limited by the rule that "prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority. . . ." Ponte v. Real, 471 U.S. 491, 496 (1984).

The information that forms the basis for the prison disciplinary action must possess some indicia of reliability to satisfy due process. Cato v. Rushen, 824 F.2d 703, 705 (9th Cir.1987). In evaluating whether "some evidence" exists, the court inquires "whether there is any evidence in the record that could support the conclusion reached by the disciplinary board, without assessing the witnesses' credibility or reweighing the evidence. Id. at 455-456. Additional requirements are imposed when a prison disciplinary committee relies on statements by an unidentified inmate informant. Due process requires the record to contain some factual information from which the committee could reasonably conclude that the information was reliable and a prison official's affirmative statement that safety considerations precluded disclosure of the informant's identity. Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir.1987). Reliability may be established by (1) the oath of the investigating officer appearing before the committee as to the truth of his report that contains confidential information, (2) corroborating testimony, (3) a statement on the record by the chairman of the ...


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