The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
There are several motions pending before the Court, categorized as follows:
(1) Discovery Motions,consisting of the ICC Defendants'*fn1
Motion for a Protective Order (Dkt. 59) and Plaintiff's motions related to the
confiscation of his journal and other items,*fn2 see
Dkt. 44 (Plaintiff's Motion to Return Journal and Other Items); Dkt.
53 (Plaintiff's Objections to and Motion to Strike Affidavit of
Annette Mullen); Dkt. 62 (Plaintiff's Motion for a Bench Warrant);
(2) Motions Related to Summary Judgment,consisting of the ICC Defendants' Motion for Summary Judgment (Dkt. 40), the ICC Defendants' Motion for Leave to File an Amended Motion for Summary Judgment (Dkt. 57), and Plaintiff's Motion in Opposition to Defendants' Motion for Summary Judgment (Dkt. 61); and
(3) Motions Related to the Complaint, consisting of Plaintiff's Motion for Leave to File First Supplemental Civil Rights Action (Dkt. 54), Plaintiff's Motion for Joinder to ACLU Case (Dkt. 64), and Plaintiff's Motion for Class Certification (Dkt. 65);
The Court finds that the decisional process would not be aided by oral argument, and it will resolve these motions after consideration of the parties' written submissions.
D. Idaho L. Civ. R. 7.1(d).
Plaintiff Michael Hayes is an Idaho Department of Correction (IDOC) inmate who has been incarcerated at the Idaho Correctional Center (ICC) since 2004. On April 14, 2007, Hayes was beaten and robbed by two other inmates. According to prison records, these inmates went into Hayes' cell and "assaulted him with a lock in their hand as a weapon. They told him they wanted him to pay rent and he refused. As they assaulted him, they robbed him of his commissary, . . . ." Dkt. 46-4, at 1. Hayes fled his cell, but the assault continued, eventually ending with inmate Timothy Bushnell "knocking Hayes down to the floor and kicking him continually until he appeared to go unconscious. Inmate Hayes then got up and attempted to exit the pod by pushing the call button at the pod door. The pod was locked down and a code blue called because of the assault." Id.
Hayes had filed concern forms before the assault, asking to be transferred to a different pod because he feared for his safety. Those requests were denied.
Following the assault, Hayes was treated for injuries and then placed in the Segregation Management Unit. He was later transferred to a different pod where he is "largely free of these kind of assaults." Dkt. 7 ¶ 39.
In this action, Hayes asserts that defendants failed to protect him, violating his rights under the Eighth Amendment and the Due Process Clause.Hayes filed his original complaint in March 2009 and his first amended complaint in November 2009. Dkt 1, 7.
1. ICC Defendants' Motion for a Protective Order
The discovery cutoff in this case was September 30, 2010 and the dispositive-motion cutoff was November 30, 2010. See Dkt. 14, at 2; see also Dkt. 51 (granting minor extensions to the motion cutoff). In early 2010 -- well before the discovery cutoff, Hayes filed two motions to compel. See Dkt. 21, 30. The Court decide these motions on March 11, 2011; among other things, the Court ordered the ICC Defendants to produce additional documents on a discrete issue: those "concerning previous assaults on other inmates between April 14, 2006 and April 14, 2007." Dkt. 51, at 8. At the same time, the Court gave these defendants an opportunity to seek a protective order related to these documents. Id.
In April 2011, the ICC Defendants responded with the currently pending motion for a protective order. They argue that a protective order is necessary because "disclosure of these documents to a currently incarcerated inmate would threaten the security of the prison, prisoners, or prison officials." Dkt. 59, at 4. The ICC Defendants also contend that redacting sensitive information would render the documents useless.
Hayes did not respond to this motion, and the ICC Defendants urge the Court to grant the motion on that basis alone. See Dkt. 63. The Court declines to do so for two reasons.
First, while the Court recognizes that pro se litigants are bound by the rules of civil procedure, this case is procedurally confusing, in part because so many motions pile up before the Court has a chance to decide them. This pileup likely caused some confusion as to whether Hayes was required to respond to the motion for a protective order. In particular, the Court notes that when it ordered the ICC Defendants to produce the inmate-on-inmate-assault documents, it also gave Hayes until June 30, 2010 to amend his summary judgment brief. Dkt. 50, at 6. In theory, Hayes would have had new documents in his hands at that point, which would have allowed him to strengthen his opposition.
The ICC Defendants did not produce the documents to Hayes, however, electing instead to file a motion for a protective order. And on July 1, 2011 -- one day after the June 30, 2011 deadline to file amended summary judgment briefing -- Hayes filed his "Motion in Opposition to Summary Judgment," wherein he complained that the ICC Defendants had not produced documents to him and that summary judgment should be denied on that basis. Dkt. 61.
Under these circumstances, it seems apparent that Hayes was unaware of any need to respond to the motion for a protective order. Accordingly, the Court will not grant the motion for a protective order simply because Hayes did not file an objection.
Second, even in the absence of an opposition, a motion must have merit before the Court will grant it. Here, while the Court understands the security concerns implicated by producing the requested documents to Hayes, the ICC Defendants have not adequately explained why redacting sensitive information would render the documents useless. Further, defendants' need for security must be balanced against Hayes' right to discover relevant evidence.
Documents relating to inmate-on-inmate assaults at the prison are potentially relevant to Hayes' action because he contends that defendants were deliberately indifferent to serious threats to his safety. To demonstrate such indifference, a prisoner must show that the official knew of and disregarded an excessive risk to inmate safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). To prove knowledge of the risk, the prisoner may rely on circumstantial evidence. Id. at 842. For example, if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was "longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus 'must have known' about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk."
Id. (quoting respondents' brief).
Under these authorities, Hayes should be permitted the chance to prove that, based on past assaults, the risk was so obvious that defendants must have known that Hayes faced a substantial risk of serious harm. See Dykes v. Morris, 85 F.R.D. 373, 376-77 (N.D. Ill. 1980) (under similar facts, court ordered prison officials to submit reports of other inmate-on-inmate assaults for an in camera inspection).
To balance Hayes' right to discover evidence of other inmate-on-inmate assaults with the ICC Defendants' security concerns, the Court orders the following:
(1) The ICC Defendants shall produce documents to Hayes related to inmate-on-inmate assaults at the prison during the period April 14, 2006 through April 14, 2007. Defendants may redact information from these documents that is asserted to be sensitive or confidential (such as information containing other inmates' private medical information) but must concurrently produce a log indicating the type of information redacted from each document and the reason for the redaction. Further, if inmate names are redacted, the ICC Defendants should not simply block out that information; they must replace each inmate's name with anonymous identifier, such as "Inmate X" each time that inmate's name appears in a prison record.
(2) The Court will attempt to appoint pro bono counsel for the limited purpose of assisting Hayes with discovery in this case. Such counsel will assist Hayes in obtaining documents responsive to his outstanding document request. The Court believes counsel is necessary because Hayes has requested a potentially large pool of documents that are sensitive to prison security, and the presence of counsel will ensure that Hayes obtains responsive documents while at the same time allowing the prison to protect sensitive information and maintain security. Put differently, lawyers are skilled at sifting through large pools of documents and assessing the propriety of redactions; pro se litigants are not. The Court will issue a separate order identifying Hayes' counsel.
(3) The ICC Defendants are further ordered to coordinate discovery efforts in this case with discovery efforts of the parties in Kelly v. Wengler, Case No. 1:11-cv-00185-EJL. The parameters of the coordinated discovery are explained further, below, in connection ...