United States District Court, E.D. California
ORDER RE: DOCUMENTS WITHHELD ON THE BASIS OF THE
OFFICIAL INFORMATION PRIVILEGE
Jerry
Dillingham (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action. This case proceeds “on
Plaintiff's original complaint (ECF No. 1), on
Plaintiff's claims against Defendant Garcia for
conspiracy, retaliation in violation of the First Amendment,
and excessive force and failure to protect in violation of
the Eighth Amendment.” (ECF No. 21, at p. 4).
Plaintiff's claims stem from allegations in his complaint
that Defendant Garcia threatened Plaintiff's life and
told other inmates to attack Plaintiff because Plaintiff
wrote 602 grievances against him, that Defendant Garcia
conspired with an inmate to have that inmate attack
Plaintiff, and that Defendant Garcia watched that inmate
attack Plaintiff without trying to prevent it.
Based
on information provided in Defendant Garcia's scheduling
conference statement, and after discussion at a scheduling
conference held on September 30, 2019, the Court ordered that
“Defendant(s) have thirty days from the date of service
of [the scheduling] order to submit to the Court for in
camera review the two confidential memoranda that were
prepared in connection with Plaintiff's allegations in
the complaint, the two confidential appeal inquiry findings
that were prepared in connection with Plaintiff's
allegations in the complaint, and other related
documents.” (ECF No. 75, at p. 2) (footnote omitted).
On
October 31, 2019, Defendant Garcia complied with the
Court's order and submitted the documents for in
camera review. (ECF No. 81). Defendant Garcia included
an explanation for his claim that the documents should be
withheld under the official information privilege. (ECF Nos.
80 & 81). He also included a declaration from J. Barba
and a privilege log. (Id.).
The
“common law governmental privilege (encompassing and
referred to sometimes as the official or state secret
privilege) . . . is only a qualified privilege, contingent
upon the competing interests of the requesting litigant and
subject to disclosure. . . .” Kerr v. U.S. Dist.
Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir.
1975) (internal citations omitted). The Ninth Circuit has
since followed Kerr in requiring in camera
review and a balancing of interests in ruling on the
government's claim of the official information privilege.
See, e.g., Breed v. U.S. Dist. Ct. for N. Dist. of
Cal., 542 F.2d 1114, 1116 (9th Cir. 1976) (“[A]s
required by Kerr, we recognize ‘that in camera review
is a highly appropriate and useful means of dealing with
claims of governmental privilege.'”) (quoting
Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 426
U.S. 394, 406 (1976)); Sanchez v. City of Santa Ana,
936 F.2d 1027, 1033-34 (9th Cir. 1990), as amended on
denial of reh'g (Feb. 27, 1991), as amended on
denial of reh'g (May 24, 1991) (“Government
personnel files are considered official information. To
determine whether the information sought is privileged,
courts must weigh the potential benefits of disclosure
against the potential disadvantages. If the latter is
greater, the privilege bars discovery.”) (internal
citations omitted).
With
these legal standards in mind, the Court has conducted an
in camera review of the documents withheld under the
official information privilege.
The
Court holds that the following documents or portions of
documents should be produced because the potential benefits
of disclosure are greater than the potential disadvantages:
• Pages 010, 017-20, 022, 043-47
These
documents include statements from Plaintiff and Defendant
about the central issue in this lawsuit, i.e., whether
Defendant Garcia solicited other inmates to retaliate against
Plaintiff. It also includes Plaintiffs grievances and
responses on this and related issues.
The
Court holds that the remaining documents may be withheld
under the official information privilege. The Court believes
that these documents could pose safety and security concerns
to Plaintiff as well as others at the prison. The Court is
mindful that the complaint at issue in this case concerns the
allegation that Plaintiff was attacked by other inmates based
on Plaintiffs grievances implicating officers and inmates.
The potential for retaliation based on disclosure of
additional documents related to Plaintiffs grievances is
high. In assessing the relevance of these documents, the
Court notes that none of them contain a witness statement,
other than by Plaintiff, supporting Plaintiffs assertion that
Defendant Garcia solicited other inmates to retaliate against
Plaintiff.
For the
foregoing reasons, it is ordered that, within thirty days of
the date of service of this order, Defendant Garcia shall
produce to Plaintiff the documents at Pages 010, 017-20, 022,
043-47.
Defendant
Garcia is permitted to withhold the remaining documents under
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