United States District Court, D. Arizona
HONORABLE DAVID C.BURY UNITED STATES DISTRICT JUDGE.
December 19, 2018, the Court granted in part and denied in
part a Motion to Compel discovery filed by the Plaintiff. The
Court ordered Defendants to provide in camera
certain potentially responsive documents which Defendants
asserted were confidential and covered by the Privacy Act or
of a highly sensitive nature reflecting law enforcement
security information. Due to the shut-down of the federal
government, the case was stayed, including this discovery. On
February 1, 2019, the Defendants filed a Notice of resumed
government activity. The Court lifts the stay and grants in
part and denies in part the remainder of the Plaintiff's
Motion to Compel. (Doc. 41.)
Court has reviewed the documents tendered in camera.
There is no question that the post orders reflect highly
sensitive security law enforcement information. In part the
information contained in the post orders is unnecessary
because the Defendants have admitted that the perpetrator of
the alleged sexual assault was out of bounds. Relevant to the
question of negligence, and not admitted, is the question of:
why was the perpetrator inmate out of bounds?
for Production No. 1and 3.
seeks discovery of any and all duties of Housing Unit
Officers at USP Tucson that existed on May 19, 2016 (the day
he was assaulted). Plaintiff asks how did the alleged
assailant gain access to B-2 Unit at USP Tucson on May 19,
2016, between the hours of 9:01 am-10:05pm?
post orders are relevant to the question of negligence
because they reflect a highly structured inmate tracking
system, including stand-up body counts, inmate identification
cards, passes, and very specific procedures for monitoring
inmates as they move within the prison facility such as going
from cell to job assignment, to a medical appointment, etc.
The Defendants have admitted that the alleged assailant was
out of bounds, but the investigation report presented in
camera was into the alleged assault, not the out of
bound status of the alleged assailant. Defendants respond
that they have produced the BOP's Program Statement
5500.14, Correctional Services Procedures Manual.
The Court notes that Defendants include in the in
camera review materials, Program Statement 550014B,
Complex Supplement: Inmate Accountability. The Court
does not know whether this is a copy of the Program Statement
actually disclosed or a Supplement, and the Defendants make
no argument as to whether the Supplement should be disclosed
Defendants respond to Plaintiff's discovery request that
they consulted with the officer on duty at the time of the
assault, and he reported that he did not recall the alleged
assailant entering the housing unit or the circumstances of
the event, therefore, Defendants do not know what happened or
how the alleged assailant came to be out of bounds. The
Complex Supplement: Inmate Accountability Program
Statement 5500.14B and the post notes suggest, otherwise.
Both reflect specific procedures are in place for tracking
inmate movement 24/7 within the facility; there appear to be
procedures in place, which if followed, would enable the
Defendants to know the exact whereabouts of an inmate at any
given point in time. It was not enough to ask the officer on
duty, randomly checking passes, if he knew what happened. The
relevant question is the one asked by the Plaintiff: how did
the alleged assailant gain access to B-2 Unit at USP Tucson
on May 19, 2016, between the hours of 9:01 am-10:05pm? The
answer should be given in the context of the system designed
to monitor inmate whereabouts.
Court concludes, however, that disclosure of the post notes
is not necessary because this information can be provided to
the Plaintiff through other means, such as has been done by
Defendants in producing Program Statement 5500.14 and
5500.14B. The inmate accountability system reflected in the
post notes is of course revealed to all inmates to the extent
they need to know the appropriate procedures which must be
followed for compliance, i.e., to not be considered out of
bounds. In other words, inmates are required to follow
specific procedures, such as carrying an identification card,
standing up for counts, checking in and out when moving from
one place to another, etc. Obviously, these requirements are
communicated to all inmates, including the Plaintiff.2
Defendants need only disclose which one of these known inmate
accountability requirements the alleged assailant violated
when he was admittedly out of bounds in Plaintiff's unit.
It is not enough for Defendants to simply admit that the
alleged assailant was out of bounds because he was somewhere,
where he was not supposed to be. The admission does not make
these two discovery requests irrelevant to the question of
for Production No 6.
alleged assailant inmate's disciplinary history is
relevant to show whether the Defendants should have known
that he needed to be housed in a facility where he would be
subject to closer supervision.
for Production No. 7.
though the Defendants do not dispute that the sexual assault
occurred, the incident report given to the alleged assailant
is relevant because it goes to the nature of the
Plaintiff's injuries. The fact that it has already been
disclosed to the alleged assailant reduces the risk of its
disclosure to third-party witnesses who were interviewed as
part of the investigation. If Defendants believe that any of
the third-party witnesses might be at risk from the
disclosure of the investigative report to the Plaintiff, the
Defendants may redact the third-party witnesses'
for Production No. 8.
though the Defendants admit that the alleged assailant was
transferred, any information as to why he was transferred may
be relevant to Plaintiffs claim that Defendants acted
negligently by not exercising sufficient supervision over the
alleged assailant, i.e., housing the perpetrator inmate at
FCC-Tucson was negligent. As explained herein, the Plaintiffs
Requests for Production are relevant, and Defendant shall
produce the discovery. The Defendants shall, however, provide