Perkins v. City of Modesto

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON B. PERKINS, No. 1:19-cv-00126-NONE-EPG 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 14 CITY OF MODESTO, et al., (Doc. No. 74) 15 Defendants.

16 17 Plaintiff Jason B. Perkins seeks reconsideration of a discovery ruling designating as 18 confidential certain internal affairs (“IA”) files belonging to defendants City of Modesto (“City”) 19 and Modesto Police Department (“Modesto PD”). For the reasons explained below, plaintiff’s 20 motion for reconsideration will be denied. 21 BACKGROUND 22 This is a police shooting case in which the court previously denied plaintiff’s motion for 23 summary judgment. (Doc. No. 68 at 3–6 (providing a factual summary).) The court will not 24 repeat the facts of the case here since the parties are quite familiar with them. 25 During discovery, plaintiff sought Modesto PD’s IA files. (Doc. No. 74 at 6.) The parties 26 entered into a stipulated protective order designating all such IA files as confidential but allowing 27 for plaintiff to challenge that designation upon receipt and review of the documents. (Doc. Nos. 28 28, 29, 32, 33, 41.) The City subsequently produced the documents to plaintiff. (Doc. No. 74 at 1 7–9.) The IA files include “written citizen complaints, audio and video recordings, interview 2 transcripts, investigation cover sheets, complaint history summaries, complaint 3 recommendations/dispositions, notices of complaint dispositions, MPD policies, police/incident 4 reports, CAD response reports, etc.” (Id. at 7.) After receiving and reviewing the documents, 5 plaintiff’s counsel sent notice to defense counsel stating that plaintiff was challenging the 6 confidential designation for all IA files, and the magistrate judge thereafter granted defendants 7 leave to file a motion for protective order seeking to keep certain documents confidential. (Doc. 8 No. 46-1 at 287–95; 60-2 at 9–13; 57 at 34.) 9 On May 7, 2020, the City moved for a protective order seeking to keep certain IA files 10 confidential, while conceding that other IA files were not originally properly designated as 11 confidential. (Doc. No. 60.) In this regard, the City affirmatively waived confidentiality with 12 respect to the following documents, subject to redactions: FD 014-002; FD 015-002; FD 015-003; 13 FD 015-004; FD 016-001; FD 016-003; FD 016-005; FD 016-006; FD 017-001; FD 017-002; IA 14 13-019; IA 15-011; IA 16-048; IA 17-003; and IA 18-028. (Id. at 2.) The City concluded in May 15 of 2020 that these documents were not confidential because they were subject to disclosure 16 pursuant to California Penal Code § 832.7. That statute provides that law enforcement personnel 17 and IA records (i.e., those compiled pursuant to California Penal Code § 832.5) are generally 18 confidential. Pen. Code § 832.7(a). However, such files may be disclosed if they concern an 19 incident involving: the discharge of a firearm by a law enforcement officer or a law 20 enforcement’s use of force which resulted in death or great bodily injury; a sustained finding of a 21 law enforcement officer’s sexual assault on a member of the public; or a sustained finding of 22 dishonesty by a law enforcement officer. Cal. Pen. Code § 832.7(b)(1)(A)–(C). 23 The City did not, however, waive confidentiality as to the other IA files because, 24 according to the City, those documents are not subject to Penal Code § 832.7(b) and additionally, 25 disclosure “would harm the privacy interests and morale” of Modesto PD. (Doc. Nos. 60-1 at 3; 26 60-3 ¶ 10.) The documents which the City argued were properly designated as confidential 27 include: IA13-025; IA13-031; IA14-030; IA14-045; IA14-052; IA15-001; IA15-031; IA15-036; 28 IA15-044; IA16-015; IA16-028; IA16-034; IA16-035; IA16-036; IA16-038; IA16-043; IA17- 1 002; IA17-018; IA17-019; IA17-037; IA17-039; IA17-054; IA18-003; IA19-005; IA19-020; 2 IA19-022; IA19-023; IA19-024; the personnel file of Officer Jerry Ramar; and the personnel file 3 of Officer Ryan Olson.1 (Doc. No. 73 at 5.) The City submitted portions of each IA file for in 4 camera review to the magistrate judge to aid in ruling on its motion for protective order. (Id. at 3; 5 Doc. No. 60-1 (Defendants’ Motion for Protective Order) at 3 n.1) After reviewing the submitted 6 documents, the magistrate judge issued the protective order designating the officer personnel files 7 and IA files as confidential. (Doc. No. 73 at 14.) 8 Plaintiff does not seek reconsideration of the protective order with respect to the personnel 9 files of Officers Jerry Ramar or Ryan Olson—the two officers who were involved in the shooting 10 underlying this lawsuit. (Doc. No. 74 at 11 n.5.) Instead, plaintiff requests only that the court 11 reconsider the protective order’s designation of the IA files as confidential. 12 LEGAL STANDARD 13 Federal Rule of Civil Procedure 72(a) states non-dispositive pretrial matters may be 14 decided by a magistrate judge, subject to reconsideration by the district judge. See also E.D. Cal. 15 R. 303(c). The district judge shall, upon reconsideration, modify or set aside any part of the 16 magistrate judge’s order which is found to be “clearly erroneous or contrary to law.” E.D. Cal. R. 17 303(f); see also 28 U.S.C. § 636(b)(1)(A). Discovery motions are non-dispositive pretrial 18 motions within the scope of Rule 72(a) and § 636(b)(1)(A), and thus are subject to the “clearly 19 erroneous or contrary to law” standard of review. Rockwell Int’l, Inc. v. Pos-A-Traction Indus., 20 Inc., 712 F.2d 1324, 1325 (9th Cir. 1983). The magistrate judge’s factual determinations are 21 reviewed for clear error, and the magistrate judge’s legal conclusions are reviewed to determine 22 whether they are contrary to law. United States v. McConney, 728 F.2d 1195, 1200–01 (9th Cir. 23 1984) overruled on other grounds by Estate of Merchant v. CIR, 947 F.2d 1390 (9th Cir. 1991). 24 “[R]eview under the ‘clearly erroneous’ standard is significantly deferential, requiring a ‘definite 25 and firm conviction that a mistake has been committed.’” Concrete Pipe & Prods. of Cal., Inc. v. 26 Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 623 (1993) (quoting United States v. 27 1 Unless otherwise indicated, all references to “IA files” hereafter refer to those that the City 28 maintains are confidential, not the IA files where confidentiality was waived by the City. 1 United States Gypsum Co., 333 U.S. 364, 395 (1948)). “A magistrate judge’s decision is 2 ‘contrary to law’ if it applies an incorrect legal standard, fails to consider an element of applicable 3 standard, or fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Martin 4 v. Loadholt, No. 1:10-cv-00156-LJO, 2014 WL 3563312, at *1 (E.D. Cal. July 18, 2014) (internal 5 quotations and citations omitted). 6 DISCUSSION 7 After a thorough review of the IA files, this court concludes that the magistrate judge’s 8 protective order was not clearly erroneous. To determine whether the IA files had been properly 9 designated as confidential by the City, the magistrate judge applied the two-step test established 10 in In re Roman Catholic Archbishop of Portland in Or., 661 F.3d 417, 424 (9th Cir. 2011). (Doc. 11 No. 73 at 6–8.) The magistrate judge first found that disclosure of the IA files would result in 12 particularized harm: “these files contain private information regarding officers and reporting 13 parties, and the disclosure of these files will violate privacy interests and lead to potential 14 embarrassment of the officers and reporting parties.” (Id. at 7.) At the second step of the 15 analysis, the magistrate judge correctly balanced the particularized harm against the main interest 16 weighing in favor of disclosure, namely that the IA files “may involve issues important to the 17 public.” (Id.) However, this interest was found not to be so strong as to override the other 18 interests weighing against disclosure of the IA files. (Id.) Importantly, the magistrate judge 19 noted that “[a]s to the IA files, the Court finds that the disclosure of this information will violate 20 the privacy interests of, and potentially cause embarrassment and annoyance of, both the 21 reporting parties and the officers, and that these factors weigh heavily against disclosure of these 22 files.” (Id. (emphasis added).) Additionally, given the remote relevance of the IA files to the 23 facts and issues involved in this case, the magistrate judge concluded “that the sharing of this 24 information from these unrelated IA files among litigants outside of this proceeding will not 25 promote fairness and efficiency.” (Id. at 7–8.) In concluding that these IA files should be kept 26 confidential, the magistrate judge distinguished the many cases relied upon by plaintiff. (Id. at 8– 27 13.) 28 ///// 1 In the pending motion for reconsideration, plaintiff does not argue that the magistrate 2 judge somehow misapplied any of those authorities. Instead, plaintiff argues that his motion for 3 reconsideration should be granted because: (1) the precise documents that were subject to in 4 camera review by the magistrate judge before entering the protective order have not been 5 identified precisely and that as a result plaintiff is concerned that the documents submitted by 6 defendants may have been incomplete; (2) the protective order was too broad and did not analyze 7 each document individually; (3) the protective order impermissibly found “particularized harm” 8 on the basis of “potential embarrassment” to the police officers and/or reporting parties; (4) the 9 protective order’s balancing of law enforcement interests against the public’s interest was 10 erroneous; and (5) the protective order failed to adequately explain why documents deemed 11 confidential could not be publicly released after redaction of any sensitive information. (Doc. No. 12 74 at 2.) Defendants counter that the magistrate judge’s protective order was not clearly 13 erroneous, stating: “While Plaintiff may disagree with the Magistrate’s application of the 14 appropriate law, that disagreement is insufficient to warrant overturning the Magistrate’s order.” 15 (Doc. No. 75 at 8.) 16 First, plaintiff makes much of the fact that because he was not provided a separate copy 17 of the specific documents submitted by defendants for in camera review, he has concerns that the 18 documents submitted may have been “cherry picked” and incomplete. In this regard, plaintiff 19 argues he cannot be certain that the magistrate judge received “an accurate and complete 20 understanding” of each IA file. (Doc. No. 74 at 12.) Plaintiff advances this argument despite 21 defendants’ assurances that every IA file submitted for in camera review was previously 22 produced to plaintiff’s counsel. (Doc. No. 75 at 5.) The court trusts that the magistrate judge was 23 fully capable of assessing whether sufficient documents were presented to the court for in camera 24 review to allow for the required determination or whether there were gaps requiring submission 25 of additional documents for review. In his motion for reconsideration, plaintiff does not provide 26 any reason to believe that the protective order was based upon an incomplete in camera review of 27 documents. The court has simply been presented no reason to believe that the documents 28 reviewed by the magistrate judge were insufficient to reach the decision set forth in the protective 1 order. Moreover, the undersigned has now reviewed the documents submitted for in camera 2 review and has found them to be detailed and clearly sufficient for purposes of making the 3 determination required by the motion seeking the issuance of the protective order. 4 Second, plaintiff repeatedly—and incorrectly—characterizes the magistrate judge’s order 5 as a “blanket protective order.” (See, e.g., Doc. No. 74 at 13.) This is not the case. Not all IA 6 files in this case have been designated confidential. Indeed, defendants conceded that some IA 7 files should not be maintained as confidential, but others should. Of that latter group, the 8 magistrate judge reviewed the IA files, analyzed the applicable legal standard as to each IA file, 9 and reached the same conclusion with respect to each of those IA files. The fact that the same 10 legal reasoning applied to a selected group of IA files does not make the magistrate judge’s 11 protective order a “blanket” one. To the extent plaintiff is generally demanding that the 12 magistrate judge make individualized determinations as to each of the 28 IA files designated by 13 defendants as confidential and reviewed by the magistrate judge in camera, as opposed to the 14 order’s statement that the same legal reasoning applied to all 28 IA files, plaintiff provides no 15 authority in support of that demand. 16 Third, the protective order did not impermissibly find harm based on potential 17 embarrassment or give undue deference to law enforcement interests. As the federal rules state, a 18 “court may, for good cause, issue an order to protect a party or person from annoyance [or] 19 embarrassment . . .” Fed. R. Civ. P. 26(c). The magistrate judge concluded that, if made public, 20 the IA files could cause embarrassment, not simply to law enforcement, but to the reporting 21 parties as well. (Doc. No. 73 at 7.) Plaintiff characterizes the protective order’s conclusion in 22 this regard as “unsupported,” even though the magistrate judge reviewed the IA files in camera 23 prior to issuing the protective order. (Doc. No. 74 at 14.) Having reviewed those IA files in 24 camera as well, the undersigned finds that the magistrate judge’s conclusion that the release of 25 those files to the public was potentially embarrassing to both law enforcement and the reporting 26 parties was not clearly erroneous. 27 Fourth, plaintiff argues that the protective order’s balancing of the interests at stake was 28 flawed. Plaintiff essentially argues that disclosure of the IA files serves several important public 1 interests, and that those interests are so strong as to override the interests cited in the protective 2 order, i.e., respecting the privacy interests of law enforcement officers/reporting parties and to 3 avoid embarrassment to both. (Doc. No. 74 at 16–24.) In other words, defendant disagrees with 4 the magistrate judge’s application of the governing law. Plaintiff’s argument does not cause this 5 court to form a “definite and firm conviction that a mistake has been committed.” Concrete Pipe 6 & Prods., 508 U.S. at 623 (citation omitted). Plaintiff generally argues that disclosure of the IA 7 files will promote public safety and fairness, in part, because those files are purportedly relevant 8 to plaintiff’s supervisory liability claim based on policies or customs of Modesto PD, which 9 plaintiff claims may be “inferred from widespread practices or evidence of repeated constitutional 10 violations for which the errant municipal officers were not discharged or reprimanded.” (Doc. 11 No. 74 at 20) (citing Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011) (internal 12 quotations omitted)).) However, after reviewing the IA files and comparing them to the facts of 13 this case, the magistrate judge concluded that the public interests cited by plaintiff were not 14 particularly strong because “the IA files [in question] are not related to this case.” (See Doc. No. 15 73 at 7–8.) Critically, in the pending motion for reconsideration, plaintiff does not identify any 16 specific IA file that would support his supervisory liability cause of action. Again, having also 17 subjected the files in question to in camera review, the undersigned agrees that the IA files that 18 are the subject of the protective order do not discuss incidents similar to the one at issue in this 19 case, nor do they otherwise appear to provide information that appears likely to support a Monell 20 claim against the City. Therefore, it was not clearly erroneous for the magistrate judge to 21 conclude that the public’s interest in the IA files did not outweigh the private interests at stake. 22 Finally, “[a]fter a thorough review of . . . the IA files,” the magistrate judge concluded that 23 those files could not be redacted in a “meaningful” manner. (Id. at 13.) Again, plaintiff does not 24 identify any IA file in particular that he believes should be disclosed with proper redactions. 25 While plaintiff argues that the names of the parties and addresses could be redacted to prevent 26 identification of individuals, (Doc. No. 74 at 25), plaintiff does not discuss how such redactions 27 could resolve the other interests of preventing embarrassment to law enforcement and the 28 reporting parties—especially when those facts are found throughout a particular IA file. 1 | Accordingly, it was also not clearly erroneous for the magistrate judge to conclude that the IA 2 | files at issue could not be appropriately redacted and still serve a meaningful purpose if disclosed. 3 CONCLUSION 4 For the reasons stated above, plaintiff's motion for reconsideration (Doc. No. 74) of the 5 | August 17, 2020 protective order (Doc. No. 73) is denied. 6 | IT IS SO ORDERED. si am 7 Li. wh F Dated: _ November 6, 2020 tn □ Soe 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28