Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On February 11, 2010, the court ordered defendants' counsel to inquire with the Department of Corrections and Rehabilitation to ascertain the whereabouts of defendants Barter, Cooper, and Florez, and to produce certain documents responsive to plaintiff's discovery requests or prepare a privilege log for withheld documents and submit them to the court for in camera review. Defendants have complied with that order and have filed the allegedly privileged documents under seal for in camera review. See Dckt. No. 87, 91, 92.
Also pending are plaintiff's motions for appointment of counsel, for sanctions, and for filing and serving pleadings. See dckt. Nos. 89, 99, 100. He has also filed documents titled "notice of submission of pleading" and "case status." Dckt. Nos. 102, 107. Defendants have opposed his motions. Dckt. Nos. 93, 105.
I. Allegedly Privileged Documents
Defendants have submitted eleven sets of documents that they claim are privileged*fn1 in response to the court's February 11, 2010 order, as well as a privilege log and declarations from a CDCR inmate appeals coordinator and a CDCR staff services manager.
Defendants argue that they do not have to provide plaintiff with any of the documents because they are protected by the official information privilege. Federal common law recognizes a qualified privilege for official information. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). Personnel files of government employees are considered official information.
Id. To determine whether the information sought is privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages. Id. at 1033-34. That is, the privilege should ensure disclosure of discoverable information without compromising the state's interest in protecting the privacy of law enforcement officials and in ensuring the efficacy of its law enforcement system. Kelly v. City of San Jose, 114 F.R.D. 653, 662-63 (N.D. Cal. 1987). "In the context of civil rights suits against [corrections officials], this balancing approach should be 'moderately pre-weighted in favor of disclosure.'" Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995) (quoting Kelly, 114 F.R.D. at 661).
Because "privileges operate in derogation of the truth finding process the law places the burden of proving all elements essential to invoking any privilege on the party seeking its benefits." Kelly, 114 F.R.D. at 662; Fed. R. Civ. P. 26(b)(5).
The court has reviewed the submitted documents and finds that the following sets of documents should be provided to plaintiff: Staff complaint package, Log No. HDSP 05-349, and staff complaint package, Log No. HDSP-06-568. These documents detail inmates' claims against MTA Callison for his alleged failure to provide inmates their insulin injections in a proper manner. This is exactly plaintiff's claim against MTA Callison in this case. The information revealed by the documents may be highly probative as to MTA Callison's motive, intent, plan, or absence of mistake or accident regarding the facts alleged in this case. The documents may also lead to admissible evidence that may be used to challenge MTA Callison's credibility.
Defendants have submitted a declaration attesting to the harm that the disclosure of the documents would cause.*fn2 T. Robertson, the Inmate Appeals Coordinator at High Desert State Prison, declares that prisoners who provided information regarding the staff complaints might be at risk of physical harm if the documents were disclosed, as they might have provided information adverse to the complaining prisoner's interests. He declares that disclosure of confidential medical information could be detrimental to the prisoners' health and medical treatment. Finally, he states that disclosure of policies regarding pepper spray would allow inmates to defeat the use of pepper spray to control violence and disruptive behavior. None of these concerns weigh heavily against the release of the records listed above. These records do not contain any interviews with non-complaining inmates or concern pepper spray. Defendants do not explain how the disclosure of these inmates' medical information--that they have diabetes, and that one of them uses a wheelchair--is detrimental to their treatment. Thus, defendants have not identified any specific harms that will result from the release of these particular documents.
Defendants make several additional arguments against the production of the records. They argue that as none of the staff complaints were sustained, they are not reasonably calculated to lead to the discovery of admissible evidence. Defendants have cited no controlling authorities on this point, nor is it persuasive. Prison officials may or may not adequately investigate or accurately sustain inmate complaints against correctional officers. The court declines to adopt a blanket policy of deferring to the judgment of prison officials regarding the truthfulness of inmates' complaints. The complaints against Callison may lead to the discovery of admissible evidence even though they were not sustained.
Defendants also argue that because some of the documents contain medical records, HIPAA requires a protective order before health care information of persons who are not parties to the litigation are disclosed.*fn3 But the statute expressly provides that health information may be disclosed in a judicial proceeding in response to a court order. 45 C.F.R. 164.512(e)(1)(I). This order for production satisfies that requirement.
The other nine sets of documents include complaints against MTA Callison for failing to medically treat an inmate who had been pepper sprayed; for failure to provide proper care to an inmate for seizures; for performing an unclothed body search of an inmate; for preventing a nurse from passing out medication and for putting a booger on an inmate's cell window; and for making racial slurs, tampering with food, and assaulting an inmate; and complaints against MTA Cullison for yelling racial slurs, for being rude and throwing an inmate's medications on the floor, and for making sexual advances towards an inmate. The final document is a confidential letter of instruction to MTA Cullison regarding empty oxygen canisters and incomplete inventory of a van. After reviewing these documents and applying the balancing test, the court finds that these documents need not be produced to plaintiff. Although it is possible that these documents might lead to the discovery of admissible evidence, the claims at issue in these complaints are different from the claims in plaintiff's action here and the documents are therefore less probative in this lawsuit.
Accordingly, defendants are ordered to provide to plaintiff copies of staff complaint package, Log No. HDSP 05-349, and staff complaint package, Log No. HDSP-06-568 ...