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Wells v. Gonzales

United States District Court, E.D. California

August 27, 2019

FRANK WELLS, Plaintiff,
v.
ROSA GONZALES, Defendant.

          ORDER RE: PLAINTIFF'S MOTION TO COMPEL RESPONSE TO ADMISSIONS (ECF. NO. 46) ORDER RE: PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS (ECF. NO. 47) ORDER RE: OFFICIAL INFORMATION PRIVILEGE

         Frank Wells (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action.

         “This action now proceeds against defendant Rosa Gonzales on plaintiff's claims for violation of his First Amendment right to free exercise of religion, violation of the Religious Land Use and Institutionalized Persons Act of 2000, retaliation in violation of the First Amendment, unreasonable searches in violation of the Fourth Amendment, and violation of California's Bane Act.” (ECF No. 10, at p. 2).

         Before this Court is Defendant's assertion of the official information privilege and confidentiality regarding certain documents. Also before the Court are Plaintiff's Motion to Compel Response to Admissions (ECF No. 46), and Plaintiff's Motion to Compel Production of Documents, (ECF No. 47).

         I. Background

         a. Defendant's Assertion of Official Information Privilege

         In the Court's scheduling order, the Court ordered that, “If any party or third party withholds a document on the basis of privilege, that party or third party shall provide a privilege log to the requesting party identifying the date, author, recipients, general subject matter, and basis of the privilege within thirty (30) days after the date that responses are due. The privilege log shall also be filed with the Court. Failure to provide a privilege log within this time shall result in a waiver of the privilege.” (ECF No. 24, at p. 2).

         On the day of the discovery and status conference, Defendant filed two privilege logs with the Court. (ECF Nos. 38, 39). The first privilege log revealed that Defendant withheld as privileged “All Staff Misconduct reports filed against Defendant from 2013-Present, ” “All 602 Grievances/Appeals filed against Defendant from 2013-Present, ” “Copies of all incident reports involving Defendant to include but not limited to any assault upon Defendant and/or claims of assault or excessive use of force committed by Defendant, ” “Copies of all disciplinary actions and/or negative reports with Defendant's employee file as a CDCR employee, ” “All rules Violation reports (115 RVR) filed by Defendant beginning from hiring date to present, ” “All Staff Misconduct complaints specific to Defendant confiscations of inmate property from 2013-Present, ” and “All confiscation slips submitted by Defendant from 2013-Present.” (ECF No. 38). Defendant asserted the same basis for each withholding: “Official-information privilege, confidential and private information that could jeopardize the safety, security, and privacy of the prison, staff or inmates if disclosed. (Cal. Code Regs., tit. 15, §§ 3321, 3370, and 3450(d)); Civil Code §§ 1798.24 and 1798.40; California Penal Code §§ 832.7 and 832.8; California Evidence Code § 1040, et. seq., § 1043; unwarranted invasion of personal privacy, Cal. Const. Art. I, § 1, (Gov. Code, § 6254); information irrelevant to any party's claim or defense.” (ECF No. 38).

         The second privilege log revealed that Defendant withheld as privileged “Staff Misconduct reports filed against Defendant from Dates as Follows November 2017 to present specific to reference of: a) Confiscations[, ] b) Illegal searches[, ] c) Retaliations[, ] d) Religious rights violations/claims[, ] e) Conduct beyond scope of duty[, and] f) Procedural violations” regarding fourteen staff misconduct reports; “602 grievances which were filed as Staff misconducts and charged to Appeal issue from November 2017 to Present specifically referencing: a) Confiscations[, ] b) Procedural violations[, ] c) Illegal searches[, ] d) Retaliation/Retaliatory conduct[, ] e) Religious Rights Claims/violations[, and] f) Conduct beyond scope of duty” regarding fourteen 602 grievances; “Incident reports (CDCR Form 837s) from November 2017 to present specific to Defendant;” and “Confiscation slips written/issued by Defendant from November 2017 to present.” (ECF No. 39). Defendant asserted the same bases for withholding documents in this privilege log as she did in the first privilege log. (Id.).

         Both privilege logs included a declaration from V. Soza, the Litigation Coordinator at Valley State Prison (VSP). Soza declares that he has reviewed all of the documents withheld as privileged and concluded that disclosure of any of them “could endanger the safety or staff and inmates, and potentially jeopardize the security of the institution.” (ECF No. 39, at p. 8). Soza's basis for this conclusion is as follows:

When an inmate alleges staff misconduct by an employee and the appeal has been categorized as a staff complaint, a confidential investigation into the matter commences. Pursuant to title 15 of the California Code of Regulations, § 3084.9(i)(3)(B)(1), a confidential report summarizing the review is kept strictly confidential, subject to limited exceptions. By maintaining the confidentiality of the investigation, witnesses are encouraged to make truthful statements, and investigators, who are assured of the confidential nature of the proceedings, are encouraged to accurately report their findings. Maintaining the confidentiality of the investigation also protects the privacy of inmate informants. If confidential investigations were disclosed to inmates, the institution would not be able to control the confidential and privileged nature of these types of inquiries, which would jeopardize the safety and security of the institution. For example, inmate witnesses might refuse to cooperate for fear that their statements may be revealed to other inmates, which could put them in danger of being labeled a “snitch” and/or threaten their safety. Additionally, confidential investigation reports could educate inmates about CDCR's investigatory techniques and could potentially hamper or impede future investigations. Thus, the institution's ability to conduct accurate and reliable inquiries into allegations of inmate and/or staff misconduct could be compromised because of the lack of cooperation and candor from witnesses.

(ECF No. 38, at pgs. 8-9). Notably, V. Soza fails to distinguish among any of the documents, or identify any specific safety concern by any given document.

         The Court held a discovery status conference on June 19, 2019. (ECF No. 40). Following that conference, and based on discussions with the parties, the Court ordered Defendant to submit a copy of all documents withheld under the official information privilege to the Court for in camera review. (ECF No. 41, at p. 1). The Court also gave each party until July 3, 2019 to file a brief regarding whether the documents are entitled to protection under the official information privilege. (Id.).

         Pursuant the Court's order, Defendant submitted 1, 213 pages of documents to the Court for in camera review. Defendant also filed a brief regarding her claim of privilege. (ECF No. 43).

         b. Plaintiff's Motion to Compel Response to Admissions

         Additionally, before this Court is Plaintiff's motion to compel responses to his requests for admission. (ECF No. 46). Based on the Court's review of Defendant's responses to the requests for admission, it appears that Defendant provided a substantive response to many of the requests for admission, notwithstanding her objections. It appears that Defendant did not provide full responses to the following requests:

         Request No. 4: I do not acknowledge Native American Religious Practice as a legitimate religion.

         Request No. 10: I have stated that Native American Inmates “Better be afraid of me.” Additionally, Defendant provided a limited admission to Request No. 8: I have been suspended from duty for misconduct more than once.

         c. Defendant's Opposition to Motion to Compel RFA Responses

         Defendant's opposition only specifically addresses Request No. 10. Defendant recites its objections “that the request was vague, overbroad, and ambiguous, ” and that “there is no time period indicated as to when the statement was made, or to whom the statement was made.” (ECF No. 50, at p. 3). “The information solicited was insufficient to enable Defendant to admit or deny the requested matter.” (Id.). Defendant states that she will supplement her response if Plaintiff narrows the scope to “while [Defendant was] on duty between November 2016 to present, ” which Plaintiff stated he would do in his motion to compel. (Id.).

         d. Plaintiff's Motion to Compel Production of Documents

         Plaintiff also filed a motion to compel Defendant to produce documents. (ECF No. 47). Plaintiff states that “Defendant has failed to submit any documentation requested by Plaintiff.” (ECF No. 47, at p. 4). Plaintiff then moved to compel production of documents in the following categories:

         1. Staff misconduct reports filed against Defendant from November 2017 to present specific to reference of[:]

a. Confiscations
b. Illegal searches (performed by Defendant)
c. Retaliations
d. Religious Rights violations/claims
e. Conduct beyond scope of duty
f. Procedural violations

         2. 602 Grievances which were filed as Staff Misconducts and changed to Appeal Issue from November 2017 to Present: specifically referring to:

(a-f) listed above

         3. Current lawsuit case numbers filed against Defendant and causes of action.

         4. Incident reports filed from November 2017 to present specifically involving Defendant.

         5. Confiscation slips/receipts authored by defendant from November 2017 to Present.

         6. Complete list of online sites which auction/sell items that Defendant has utilized to sell items online from November 2017 to Present.

         7. Detailed and itemized list of items sold by Defendant online to include online photo[]s of items put up for sale.

         8. Complete itemized list of account activities of online auction/sell sites to include but not limited to amount of money procured by Defendant from November 2017 to Present.

         e. Defendant's Opposition to Motion to Compel ...


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