1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Justin Dwayne Hill, No. CV 18-02613-PHX-GMS (MTM) 10 Plaintiff, 11 v. ORDER 12 Maricopa County Sheriff’s Office, et al., 13 Defendants.
14 15 Pending before the Court are five Appeals of Magistrate Judge Decision to District 16 Court by Plaintiff Justin Dwayne Hill. (Doc. 220, 259, 260, 261, and 262.) 17 Pursuant to Federal Rule of Civil Procedure 72(a), parties may file objections to a 18 magistrate judge order within fourteen days after being served with a copy of the order. 19 The Court must then consider these objections and “modify or set aside any part of the 20 order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). As all of 21 Plaintiff’s objections were timely, the Court considers each. 22 I. Doc. 220 23 Plaintiff first objects to an order, Doc. 211, denying his request for the appointment 24 of an investigator, Doc 202, and his various attempts to oblige Defendants to make video 25 and audio recordings relevant to his case accessible for his review, Docs. 203, 204, and 26 205. In three separate requests, Plaintiff attempted to compel access to various audio and 27 video footage that he is otherwise unable to view. In Doc. 203, Plaintiff requested that the 28 Court order a hearing at which such recordings could be played for him. In Doc. 204, he 1 requested that the Court order that Defendants’ Attorney personally be ordered to set up a 2 call with him to play the audio recorded interviews of Defendants Martin and Yu over the 3 telephone. In Doc. 205, Plaintiff requested that the Court order Defendants to “provide the 4 means for me to view and listen to audio/video evidence concerning this matter.” 5 As an initial matter, this Court upholds the denial of the appointment of an 6 investigator. Plaintiff has not come close to meeting the standard required for such an 7 appointment. As it pertains to the recordings, in their terse Response, Defendants noted 8 that Plaintiff was being denied direct access to the evidence because he is incarcerated and 9 providing the recordings would breach safety protocol and could endanger other inmates 10 or detention officers. Defendants further noted that the recordings were available and 11 would be produced to Plaintiff’s designee rather than to Plaintiff. Defendants did not set 12 forth any particular safety protocol that would be violated by providing the Plaintiff access 13 to the recordings, nor did they explain how giving direct access to the Defendant to the 14 recordings “could endanger other inmates or detention officers.” 15 “[U]pon request, an inmate is entitled to access prison video surveillance evidence 16 pertaining to his or her disciplinary proceeding unless the government establishes that 17 disclosure of such evidence would be, under the particular circumstances of the case, 18 ‘unduly hazardous to institutional safety or correction goals.’” Lennear v. Wilson, 937 F.3d 19 257, 271-72 (4th Cir. 2019) (quoting Wolff v. McDonnell, 418 U.S. 539, 566 (1974)). 20 Prison officials bear the burden of providing evidence justifying their denial of a prisoner’s 21 request for access to documentary evidence, including video surveillance footage. Id. at 22 270. “[I]f prison officials fail to identify a specific safety or correctional concern, courts 23 may not ‘speculate’ as to the officials’ potential reasons for denying an inmate access to 24 evidence. . . .” Id. 25 Defendants suggest in their motion papers that Plaintiff will not be able to view the 26 video evidence or hear the audio except through a summary prepared by a designee. But 27 Defendants offer no explanation as to why it would breach policy or be unadvisable to 28 allow Plaintiff to create conditions in which it would be possible for him to view and hear 1 the recordings he seeks without endangering other inmates or detention officers. Without 2 more specifics, Defendants have not provided a sufficient justification on which to deny 3 Plaintiff access to the recordings. 4 Certainly, the Magistrate Judge was correct in noting that Defendants’ attorney need 5 not play the recordings for the Plaintiff; nor does the Court have to schedule a hearing to 6 accomplish such a result. But the generic reasons offered by Defendants for refusing to 7 provide Plaintiff with access to the recordings are insufficient. To accomplish such a denial 8 of access to Plaintiff would hamper Plaintiff’s ability to prepare for his case by effectively 9 limiting his right to discovery. Although “[p]rison security” is, “in appropriate 10 circumstances, a factor which justifies a limitation on otherwise appropriate discovery as 11 unduly burdensome,” it is not “a magic incantation that allows prison officials to refuse to 12 participate in the litigation process.” Pettit v. Ryan, No. CV112139PHXDGCJFM, 2012 13 WL 13167975, at *2 (D. Ariz. Dec. 20, 2012). While reasonable security steps can be taken 14 in allowing Plaintiff to view the requested video and audio tapes, the Magistrate Judge’s 15 order is set aside and Plaintiff’s request for Defendants to make video and audio recordings 16 accessible for his review is granted, absent further justification why they should be 17 withheld. 18 II. Doc. 259 19 Plaintiff objects to Doc. 248 denying his motion for in camera review and to compel 20 Defendants to produce withheld documents, Doc. 213. On August 16, 2019, Plaintiff 21 served Defendants “with a request for production 1-9,” number two of the request being 22 “the prosecution file pertaining to the charges against [Plaintiff] retained by the MCAO.” 23 (Doc. 259 at 1.) On January 5, 2020, Plaintiff received the requested file and learned that 24 Defendants had withheld several documents. Plaintiff accordingly filed Doc. 213 the 25 following day, describing not only the withheld documents but also Defendants’ response 26 during a video conference on December 27, 2019 that some of Plaintiff’s requested 27 materials were privileged. On February 21, 2020, the Magistrate Judge denied Plaintiff’s 28 motion as untimely because, pursuant to the Court’s scheduling order (Doc. 39), all 1 Motions pertaining to discovery were required to be filed by October 31, 2019, and 2 “Plaintiff state[d] that on August 16, 2019 – two months ahead of the discovery deadline – 3 he received ‘about 35 pages’ from Defendants in response to his request.” (Doc. 248 at 4.) 4 However, Plaintiff did not state that he received documents on August 16, 2019, but rather 5 than he requested documents on that date. He stated that he received the documents on 6 January 4, 2020. Given that the Magistrate Judge apparently misread this fact and that 7 Defendants failed to produce the requested file until January 2020 (for which they have 8 provided no explanation, in response to either Doc. 211 or Doc. 259, despite the Court’s 9 request that they respond to Doc. 259), this first basis for denying Plaintiff’s motion is 10 clearly erroneous. 11 The Magistrate Judge also denied the motion on the basis that it failed to comply 12 with LRCiv 37.1 because the Magistrate could not determine “based on Plaintiff’s 13 conclusory statements that Defendants’ statements concerning the content of the 14 documents and the applicability of any privileges [we]re deficient.” (Doc.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Justin Dwayne Hill, No. CV 18-02613-PHX-GMS (MTM) 10 Plaintiff, 11 v. ORDER 12 Maricopa County Sheriff’s Office, et al., 13 Defendants.
14 15 Pending before the Court are five Appeals of Magistrate Judge Decision to District 16 Court by Plaintiff Justin Dwayne Hill. (Doc. 220, 259, 260, 261, and 262.) 17 Pursuant to Federal Rule of Civil Procedure 72(a), parties may file objections to a 18 magistrate judge order within fourteen days after being served with a copy of the order. 19 The Court must then consider these objections and “modify or set aside any part of the 20 order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). As all of 21 Plaintiff’s objections were timely, the Court considers each. 22 I. Doc. 220 23 Plaintiff first objects to an order, Doc. 211, denying his request for the appointment 24 of an investigator, Doc 202, and his various attempts to oblige Defendants to make video 25 and audio recordings relevant to his case accessible for his review, Docs. 203, 204, and 26 205. In three separate requests, Plaintiff attempted to compel access to various audio and 27 video footage that he is otherwise unable to view. In Doc. 203, Plaintiff requested that the 28 Court order a hearing at which such recordings could be played for him. In Doc. 204, he 1 requested that the Court order that Defendants’ Attorney personally be ordered to set up a 2 call with him to play the audio recorded interviews of Defendants Martin and Yu over the 3 telephone. In Doc. 205, Plaintiff requested that the Court order Defendants to “provide the 4 means for me to view and listen to audio/video evidence concerning this matter.” 5 As an initial matter, this Court upholds the denial of the appointment of an 6 investigator. Plaintiff has not come close to meeting the standard required for such an 7 appointment. As it pertains to the recordings, in their terse Response, Defendants noted 8 that Plaintiff was being denied direct access to the evidence because he is incarcerated and 9 providing the recordings would breach safety protocol and could endanger other inmates 10 or detention officers. Defendants further noted that the recordings were available and 11 would be produced to Plaintiff’s designee rather than to Plaintiff. Defendants did not set 12 forth any particular safety protocol that would be violated by providing the Plaintiff access 13 to the recordings, nor did they explain how giving direct access to the Defendant to the 14 recordings “could endanger other inmates or detention officers.” 15 “[U]pon request, an inmate is entitled to access prison video surveillance evidence 16 pertaining to his or her disciplinary proceeding unless the government establishes that 17 disclosure of such evidence would be, under the particular circumstances of the case, 18 ‘unduly hazardous to institutional safety or correction goals.’” Lennear v. Wilson, 937 F.3d 19 257, 271-72 (4th Cir. 2019) (quoting Wolff v. McDonnell, 418 U.S. 539, 566 (1974)). 20 Prison officials bear the burden of providing evidence justifying their denial of a prisoner’s 21 request for access to documentary evidence, including video surveillance footage. Id. at 22 270. “[I]f prison officials fail to identify a specific safety or correctional concern, courts 23 may not ‘speculate’ as to the officials’ potential reasons for denying an inmate access to 24 evidence. . . .” Id. 25 Defendants suggest in their motion papers that Plaintiff will not be able to view the 26 video evidence or hear the audio except through a summary prepared by a designee. But 27 Defendants offer no explanation as to why it would breach policy or be unadvisable to 28 allow Plaintiff to create conditions in which it would be possible for him to view and hear 1 the recordings he seeks without endangering other inmates or detention officers. Without 2 more specifics, Defendants have not provided a sufficient justification on which to deny 3 Plaintiff access to the recordings. 4 Certainly, the Magistrate Judge was correct in noting that Defendants’ attorney need 5 not play the recordings for the Plaintiff; nor does the Court have to schedule a hearing to 6 accomplish such a result. But the generic reasons offered by Defendants for refusing to 7 provide Plaintiff with access to the recordings are insufficient. To accomplish such a denial 8 of access to Plaintiff would hamper Plaintiff’s ability to prepare for his case by effectively 9 limiting his right to discovery. Although “[p]rison security” is, “in appropriate 10 circumstances, a factor which justifies a limitation on otherwise appropriate discovery as 11 unduly burdensome,” it is not “a magic incantation that allows prison officials to refuse to 12 participate in the litigation process.” Pettit v. Ryan, No. CV112139PHXDGCJFM, 2012 13 WL 13167975, at *2 (D. Ariz. Dec. 20, 2012). While reasonable security steps can be taken 14 in allowing Plaintiff to view the requested video and audio tapes, the Magistrate Judge’s 15 order is set aside and Plaintiff’s request for Defendants to make video and audio recordings 16 accessible for his review is granted, absent further justification why they should be 17 withheld. 18 II. Doc. 259 19 Plaintiff objects to Doc. 248 denying his motion for in camera review and to compel 20 Defendants to produce withheld documents, Doc. 213. On August 16, 2019, Plaintiff 21 served Defendants “with a request for production 1-9,” number two of the request being 22 “the prosecution file pertaining to the charges against [Plaintiff] retained by the MCAO.” 23 (Doc. 259 at 1.) On January 5, 2020, Plaintiff received the requested file and learned that 24 Defendants had withheld several documents. Plaintiff accordingly filed Doc. 213 the 25 following day, describing not only the withheld documents but also Defendants’ response 26 during a video conference on December 27, 2019 that some of Plaintiff’s requested 27 materials were privileged. On February 21, 2020, the Magistrate Judge denied Plaintiff’s 28 motion as untimely because, pursuant to the Court’s scheduling order (Doc. 39), all 1 Motions pertaining to discovery were required to be filed by October 31, 2019, and 2 “Plaintiff state[d] that on August 16, 2019 – two months ahead of the discovery deadline – 3 he received ‘about 35 pages’ from Defendants in response to his request.” (Doc. 248 at 4.) 4 However, Plaintiff did not state that he received documents on August 16, 2019, but rather 5 than he requested documents on that date. He stated that he received the documents on 6 January 4, 2020. Given that the Magistrate Judge apparently misread this fact and that 7 Defendants failed to produce the requested file until January 2020 (for which they have 8 provided no explanation, in response to either Doc. 211 or Doc. 259, despite the Court’s 9 request that they respond to Doc. 259), this first basis for denying Plaintiff’s motion is 10 clearly erroneous. 11 The Magistrate Judge also denied the motion on the basis that it failed to comply 12 with LRCiv 37.1 because the Magistrate could not determine “based on Plaintiff’s 13 conclusory statements that Defendants’ statements concerning the content of the 14 documents and the applicability of any privileges [we]re deficient.” (Doc. 248 at 4.) LRCiv 15 37.1 requires that the moving party state only “(1) the question propounded, the 16 interrogatory submitted, the designation requested or the inspection requested; (2) the 17 answer, designation or response received; and (3) the reason(s) why said answer, 18 designation or response is deficient.” It provides no guidance on how specific the “reasons 19 why said answer . . . is deficient” must be. Plaintiff asserted that none of the documents he 20 requested “appeared to be prepared in anticipation of litigation or for trial in this matter, 21 and work-product protection does not cover material prepared in anticipation of trial in 22 unrelated matters.” (Doc. 213 at 6.) In the current motion, Plaintiff further explains that 23 Defendants’ response to his request did not describe the documents not produced “in a 24 manner that . . . enabled [him] to assess the claim of privilege.” (Doc. 259 at 4.) Given that 25 Plaintiff did provide a reason, however brief, as to why Defendants’ responses to his 26 document requests were deficient, and that Defendants have provided no response to this 27 motion, the Magistrate Judge’s order is set aside and Plaintiff’s request for in camera 28 1 review and to compel Defendants to produce withheld documents for that review is 2 granted. 3 III. Doc. 260 4 Plaintiff objects to Doc. 248 denying his motion for reconsideration, Doc. 201, of a 5 prior order, Doc. 195, denying his request for a court-appointed expert pursuant to Federal 6 Rule of Evidence 706, “in order to examine . . . [his] opened envelope and determine[] 7 what the substance is on the pages inside and the envelope itself,” in support of his claim 8 that “defendants intentionally opened [his] legal mail outside of [his] presence[].” (Doc. 9 260 at 2–3.) A Rule 706 expert “typically acts as an advisor to the court on complex 10 scientific, medical, or technical matters.” Armstrong v. Brown, 768 F.3d 975, 987 (9th Cir. 11 2014); see also, e.g., San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 592 12 (9th Cir. 2014) (seeing “no reasonable objection” to the district court appointing an expert 13 to interpret “the most complex biological opinion ever prepared” by the U.S. Fish and 14 Wildlife Service); Foster v. Enenmoh, 649 F. App’x 609 (9th Cir. 2016) (“the evidence . . 15 . was not so complex that appointment of a neutral expert witness was required” in a suit 16 by a prisoner against a prison doctor for refusing to prescribe “the only medicine that 17 treated [the plaintiff’s] chronic constipation effectively”); Walker v. Am. Home Shield Long 18 Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (appointing a neutral expert 19 witness under Rule 706 was “appropriate” where the court faced “confusing” and 20 “contradictory evidence about an elusive and unknown disease”). Thus, courts “do not 21 commonly appoint an expert pursuant to Rule 706 and usually do so only in ‘exceptional 22 cases in which the ordinary adversary process does not suffice’ or when a case presents 23 compelling circumstances warranting appointment of an expert.” Womack v. GEO Grp., 24 Inc., No. CV-12-1524-PHX-SRB, 2013 WL 2422691, at *3 (D. Ariz. June 3, 2013). 25 Plaintiff asserts that “[d]etermining the substance on the evidence is a complex 26 scientific issue[] because there very well could be substances other than glue which may 27 have had the same effect on the evidence.” (Doc. 260 at 5.) The Magistrate Judge’s decision 28 is not “clearly erroneous or [] contrary to law.” Fed. R. Civ. P. 72(a). This issue is not 1 sufficiently complex or technical to warrant a court-appointed expert to determine whether 2 Defendants unlawfully opened Plaintiff’s legal mail. Moreover, “[u]ntil the Court has had 3 the opportunity to review the arguments and evidence submitted by the parties on summary 4 judgment, no determination can be made that the issues are so complex as to require the 5 testimony of an expert to assist the trier of fact.” Womack, No. CV-12-1524-PHX-SRB, 6 2013 WL at *3. The Magistrate Judge’s order is affirmed. 7 IV. Doc. 261 8 Plaintiff objects to Doc. 248 denying his request for a blank subpoena “so that I may 9 subpoena transcripts for a hearing in my state court proceeding.” (Doc. 217.)1 In his 10 original motion, Plaintiff did not explain that the “state court proceeding” from which he 11 wanted a transcript was a hearing “concerning my motion to modify my release conditions” 12 from Maricopa County Superior Court case CR2015-005443 and not “the trial proceeding 13 in the justice court,” JC2016-150752. (Doc. 236 at 1.) Thus, the Magistrate Judge denied 14 Plaintiff’s request as moot because Defendants, assuming Plaintiff sought a transcript of 15 his trial, “already notified Plaintiff that there is no transcript of his state court proceeding.” 16 (Doc. 248 at 4.) 17 Plaintiff argues this transcript is relevant to “count 9 in this action” and also to 18 “damages in all the other counts in this matter” because “[d]uring the hearing . . . the 19 County Attorney argued because I was charged with the 5 counts of public sexual 20 indecency . . . my motion to modify my release conditions should be denied.” (Doc. 236 at 21 1.) However, this Court dismissed Count Nine without prejudice on September 9, 2019, 22 (Doc. 113 at 2, 3) (dismissing all claims against “Doe 2” without prejudice and 23 summarizing prior order dismissing Count Nine without prejudice as to all other 24 defendants), and the claim was never amended. As to Plaintiff’s argument that the 25 transcript is relevant to damages, Plaintiff has not provided a date, judge, or courtroom 26
1 Plaintiff’s original motion requested an additional subpoena “so that I may obtain the 27 names of the Maricopa County Correctional Health employees which treated me for issues pertaining to damage/injury concerning the claims in this matter.” (Doc. 217.) However, 28 as Defendants have “provided the names of the healthcare workers as requested,” “that part of the request has been satisfied.” (Doc. 269 at 2.) 1 from which the hearing could be identified. In addition, Defendants note that it is unlikely 2 that there would be a transcript of the hearing, as most hearings in Superior Court are audio 3 and video recorded. Plaintiff has not explained why the County Attorney’s argument 4 opposing Plaintiff’s motion to modify his release conditions is relevant to damages, 5 particularly given that it will be difficult for Plaintiff to establish that his bond would have 6 been reduced even if that argument had not been made. The Court will therefore affirm the 7 Magistrate Judge’s order in the interest of judicial and financial economy. 8 V. Doc. 262 9 Finally, Plaintiff objects to the Magistrate Judge’s denial at Doc. 248 of Plaintiff’s 10 request for an order compelling Defendants to unredact some or all the Disciplinary Action 11 Reports (DARs) produced during discovery. Plaintiff seeks to compare inmates who 12 received DARs for violating certain jail rules and regulations with the number of inmates 13 that were criminally charged for those same violations, and asserts that he cannot do so 14 without unredacted documents “due to the fact Defendants have not provided me with the 15 number of inmates [criminally] charged.” (Doc. 262 at 4.) 16 Defendants state that they are “unable to identify any other cases submitted for 17 prosecution relating to sexual conduct or indecent exposure,” concluding that “charges 18 submitted for similar offenses . . . simply do not exist.” (Doc. 270 at 3.) As this is the 19 information Plaintiff sought as an alternative to unredacted DARs, Plaintiff’s objection is 20 moot. The Magistrate Judge’s denial is affirmed. 21 IT IS HEREBY ORDERED that Magistrate Judge Michelle H. Burns’ order (Doc. 22 211) is SET ASIDE and Plaintiff’s request for Defendants to make video and audio 23 recordings accessible for his review is GRANTED, absent further specific reasons 24 justifying the denial of access. 25 IT IS FURTHER ORDERED that Magistrate Judge Michael T. Morrisey’s order 26 (Doc. 248) is SET ASIDE in part and AFFIRMED in part as follows: 27 1. The order is affirmed as to Docs. 260, 261, and 262. 28 1 2. The order is set aside as to Doc. 259 requesting in camera review and to compel Defendants to produce withheld documents, and those requests are granted. 3 Dated this 22nd day of May, 2020. : ) 5 A Whacrsay Sooo) 6 Chief United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28