(PC) Hammler v. Gooch ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ALLEN HAMMLER Case No. 1:19-cv-00653-AWI-EPG (PC) 10 Plaintiff, ORDER RE: DOCUMENT WITHHELD 11 v. ON THE BASIS OF THE OFFICIAL INFORMATION PRIVILEGE 12 GOOCH, et al., (ECF No. 43) 13 Defendants. 14 15 Plaintiff Allen Hammler is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds on 17 Plaintiff’s Eighth Amendment claims for deliberate indifference to a serious risk of harm 18 against Defendants John Doe and Salcedo, and Plaintiff’s Eighth Amendment claims for 19 medical indifference against Defendants Salcedo, Burnes, and Gooch. (ECF No. 16). These 20 claims generally concern Defendants’ alleged lack of response to Plaintiff’s safety and medical 21 complaints following a fire that exposed him to smoke. 22 In the scheduling order, the Court noted that, if any party claimed the right to withhold 23 witness statements and/or evidence gather from investigations into the incidents at issue in the 24 complaint based on the information privilege or confidentiality, the withholding party was 25 required to provide to the Court for in camera review any witness statements and evidence 26 gathered as part of the investigations along with an explanation of why the witness statements 27 and/or evidence should be withheld. (ECF No. 39, pp. 3-4). 28 1 On August 6, 2021, Defendant filed a notice of compliance with this provision of the 2 scheduling order and thereafter submitted a document (AGO PRIV 0001-0002) via mail for in 3 camera review. (ECF No. 43). Defendants included an explanation for why the document 4 (AGO PRIV 0001-0002) should be withheld under the official information privilege. They also 5 included a declaration from Attorney Peter Lewicki. (Id.). 6 The “common law governmental privilege (encompassing and referred to sometimes as 7 the official or state secret privilege) . . . is only a qualified privilege, contingent upon the 8 competing interests of the requesting litigant and subject to disclosure.” Kerr v. U.S. Dist. Ct. 9 for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975) (internal citations omitted). The Ninth 10 Circuit has since followed Kerr in requiring in camera review and a balancing of interests in 11 ruling on the government’s claim of the official information privilege. See, e.g., Breed v. U.S. 12 Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976) (“[A]s required by Kerr, we 13 recognize ‘that in camera review is a highly appropriate and useful means of dealing with 14 claims of governmental privilege.’”) (quoting Kerr v. U. S. Dist. Ct. for N. Dist. of Cal., 426 15 U.S. 394, 406 (1976)); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), 16 as amended on denial of reh’g (Feb. 27, 1991), as amended on denial of reh’g (May 24, 1991) 17 (“Government personnel files are considered official information. To determine whether the 18 information sought is privileged, courts must weigh the potential benefits of disclosure against 19 the potential disadvantages. If the latter is greater, the privilege bars discovery.”) (internal 20 citations omitted). 21 With these legal standards in mind, the Court has conducted an in camera review of the 22 document (AGO PRIV 0001-0002) withheld under the official information privilege and 23 concludes that it may be withheld under the official information privilege. The Court believes 24 that the benefits of disclosure in terms of relevance to this lawsuit are outweighed by the 25 potential disadvantages regarding confidentiality and security. 26 \\\ 27 \\\ 28 \\\ 1 For the foregoing reasons, IT IS ORDERED that Defendants are permitted to withhold 2 || the document (AGO PRIV 0001-0002) under the official information privilege. 3 4 IT IS SO ORDERED. >|! Dated: _ August 11, 2021 [sf hey — 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28