Moore v. Lankford ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 19CV2406-DMS (BLM) 11 ROBERT MOORE, 12 Plaintiff, ORDER FOLLOWING IN CAMERA REVIEW 13 v. 14 JOE LANKFORD, MERCEDES ARELLANO, R. BUCKEL, AND DAVID STRUMSKI, 15 Defendants. 16 17 18 19 On August 16, 2020, Plaintiff submitted a motion to compel that was received on August 20 21, 2020 and accepted on discrepancy on September 4, 2020. ECF Nos. 25 and 27. Defendants 21 opposed the motion on September 22, 2020. ECF No. 30. Plaintiff replied on September 29, 22 2020. ECF No. 31 23 On October 22, 2020, the Court issued an Order Denying In Part Plaintiff’s Motion for 24 Order Compelling Discovery. ECF No. 32. In the order, the Court found that with respect to 25 Interrogatory No. 16 to Defendant Lankford, No. 14 to Defendant Strumski, No. 15 to Defendant 26 Arellano, and No. 16 to Defendant Buckel, Defendants satisfied the threshold requirement for 27 application of the Official Information Privilege. Id. at 11-12. The Court ordered Defendants to 28 lodge with the Court a copy of the grievances responsive to those interrogatories on or before 1 November 6, 2020, so the Court could conduct an review and determine whether the 2 Official Information Privilege applies. Id. at 12. 3 On November 5, 2020, in accordance with the Court’s order, Defendants lodged their 4 responsive documents. See AGO 3586-3610. The lodged documents indicate that no relevant 5 grievances (as defined by the Court’s order, ECF No. 32) were submitted by any inmate against 6 Defendants Arellano, Buckel, and Strumski. Id. at AGO 3586, 3587 & 3610. Defendants 7 identified one relevant grievance submitted against Defendant Lankford. Id. at AGO 3588-3609. 8 After a thorough review, the Court finds that the Official Information Privilege does not 9 prohibit the production of any of the documents that were submitted for review. As 10 set forth in the Court’s previous order, when a party satisfies the threshold requirement for 11 application of the Official Information Privilege, the Court will conduct an review of 12 the requested documents and perform the required balancing analysis to determine the 13 applicability of the Official Information Privilege. ECF No. 32 at 11. The test requires that 14 “courts must weigh the potential benefits of disclosure against the potential disadvantages.” 15 Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990). In civil rights cases 16 against police departments [or correctional officers], the balancing test should be “moderately 17 pre-weighted in favor of disclosure.” Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 18 1995) (quoting Kelly v. City of San Jose, 114 F.R.D. 653, 661. (N.D. Cal. 1987)). With regard 19 to the three documents indicating that there were no relevant grievances filed against 20 Defendants Arellano, Buckel and Strumski, there is no disadvantage to producing those 21 documents and Defendants are ordered to produce them. 22 With regard to the grievance submitted against Defendant Lankford, the Court has 23 considered the Kelly factors.1 Initially, the Court notes that in the instant case, Plaintiff alleges 24 25 1 The Kelly court provided a non-exhaustive list of factors (taken from Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D. Pa. 1973)) that may be considered when engaging in this weighing process: 26 (1) the extent to which disclosure will thwart governmental processes by discouraging citizens 27 from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which government self- 28 1 that he was working in the canteen and he had a work dispute with his supervisor, Defendant 2 Lankford. ECF No. 1 at 3. Plaintiff alleges that he told Defendant Lankford that his disability 3 prevented him from doing the work directed by Defendant Lankford and Defendant Lankford 4 responded that he was the boss and Plaintiff had to do what the boss ordered. Id. In the third 5 party grievance, the complainant was working in the canteen and alleged that Officer Lankford 6 harassed him and racially discriminated against him and then prevented him from working in 7 the canteen for two months. AGO 3605-06. The Court finds that this grievance, while relevant, 8 has minimal importance to Plaintiff’s case so this factor mildly favors non-disclosure. On the 9 other hand, Plaintiff’s case is non-frivolous and brought in good faith, the discovery is unavailable 10 from other sources, the police investigation in both cases has been completed, Plaintiff is not an 11 actual or potential defendant in a criminal case arising from this incident, and no 12 intradepartmental disciplinary proceedings have arisen. All of these factors favor disclosure. 13 The Court also finds while the submitted documents contain both factual and evaluative 14 information, the evaluative information is minimal, unlikely to chill government self-evaluation, 15 and does not prejudice Defendants. Similarly, there is no evidence that disclosure will 16 discourage citizens from giving information and the impact on third parties is minimized because 17 identifying information is redacted. As a result, in this case, these factors also support 18 disclosure. Accordingly, the Court finds that the Official Information Privilege does not bar 19 disclosure of the documents submitted to this Court for review. The Court finds that 20 the documents submitted to the Court include irrelevant and personal identifying information 21 and on those grounds directs that the following pages NOT be produced: AOG 3591-3595 and 22 AOG 3601-03. Defendants are ordered to produce pages AOG 3586-90, AOG 3596-3600, and 23 24 information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or 25 reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may 26 arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good 27 faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff's case. Kelly, 114 28 1 3604-10 to Plaintiff on or before November 30, 2020. Defendants may redact all 2 || personal identifying information from the documents being produced. 3 IT 1S SO ORDERED. 4 || Dated: 11/12/2020 ions age 5 Hon. Barbara L. Major United States Maaistrate Judae 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28