Johnson v. Dye

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TERRANCE JOHNSON, )

)

Plaintiff, )

)

vs. ) Case No. 3:19-cv-00444-GCS

)

JONATHAN DYE and KYLE )

HUGHEY, )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Plaintiff Terrance Johnson is an inmate in the custody of the Illinois Department

of Corrections (“IDOC”) and is currently housed at Hill Correctional Center. On April 24,

2019, Plaintiff filed a pro se complaint pursuant to 42 U.S.C. § 1983 alleging that

Defendants Dye and Hughey retaliated against him and denied him due process during

a tobacco trafficking investigation at Menard Correctional Center (“Menard”) in violation

of the First, Fifth, and Fourteenth Amendments. (Doc. 1). Defendants Dye and Hughey

have asserted that they identified Plaintiff as involved in the tobacco trafficking on the

basis of four confidential informants: (i) “Harris,” (ii) “Ganus,” (iii) an unnamed

informant interviewed on May 16th (“CI 1”), and (iv) a second unnamed informant listed

in the Report of Investigation (“ROI”) and interviewed on May 12th (“CI 2”). (Doc. 64, p.

6).

Plaintiff initially served a subpoena on Warden Antony Wills in order to, inter alia,

determine the identities of the unnamed informants. (Doc. 119, p. 3).1 At that time,

Warden Wills was not a party to this suit; Plaintiff has since amended his complaint to

add Defendant Wills in his official capacity. See (Doc. 111). Now before the Court is

Defendant Wills’s motion to quash the subpoena (Doc. 59) and accompanying

supplement, which Defendant Wills provided after Plaintiff added him to the litigation.

(Doc. 117). For the reasons delineated below, Defendant Wills’s motion to quash is

DENIED.

BACKGROUND

Plaintiff alleges that during the investigation of tobacco trafficking at Menard,

Defendants Hughey and Dye issued Plaintiff a disciplinary report predicated on

insufficient facts, false statements, and information from unknown confidential

informants. (Doc. 14, p. 2). The investigation at issue began after an officer found chewing

tobacco at Menard in May 2018. (Doc. 64, p. 6). The Report of Investigation states that the

officer who found the tobacco followed a lead provided by a confidential source. Id.

The disciplinary ticket received by Plaintiff states that two confidential sources

identified Plaintiff as responsible for the tobacco trafficking. (Doc. 64, p. 6). One of the

sources allegedly implicated Plaintiff prior to the discovery of tobacco, while the other

identified Plaintiff during the following investigation. Id. The Report of Investigation

1 Although the initial motion to quash also requested Court intervention in the production of certain

additional documents, the parties have since resolved disputes over these items without the need for

further Court involvement. See (Doc. 117, p. 2 n.3); (Doc. 119, p. 6 n.1). Accordingly, to the extent that ruling

on these items is necessary, the Court finds that the motion to quash is MOOT as it pertains to subpoena

requests three through six.

identifies interviews with four named offenders: Christopher Harris (“Harris”), Victor

Ganus (“Ganus”), Plaintiff’s cellmate Derrondas Reed (“Reed”), and Plaintiff. Id. at p. 7.

Harris implicated himself, Ganus, and Reed in the trafficking. Id. Ganus implicated

Harris and Reed. Id. Both Reed and Plaintiff stated that they had no information to

provide. Id. None of the four interviewees implicated Plaintiff in the trafficking. Id. See

also (Doc. 101, p. 2). During his deposition, however, Defendant Dye indicated that both

Harris and Ganus had implicated Plaintiff, though he was unsure whether the interview

in which they did so was documented. (Doc. 56, p. 2; Doc. 72, p. 2).

The unnamed confidential sources allegedly identified Reed and Plaintiff as

tobacco traffickers after Plaintiff denied knowledge of the trafficking. (Doc. 64, p. 7, 9).

The ROI reflects that Officer Nathan McCarthy interviewed CI 1 on May 16th, while

Defendant Dye interviewed CI 2 on May 12th. (Doc. 64, p. 9). CI 2 initially identified

Plaintiff, while CI 1 confirmed CI 2’s statements. Id. However, during his deposition,

Defendant Dye also indicated that CI 2 had identified Plaintiff on May 9th prior to his

May 12th interview. Id. He also stated that he did not recall the full interview with CI 2

prior to May 12th, and that the best way to determine what information CI 2 provided

investigators would be to ask him directly. Id. Although Defendant Dye recalled

Defendant Hughey’s presence at both CI’s interviews, Defendant Hughey stated that he

was not there for either interview. Id. at p. 10. Equally, Officer McCarthy was unable to

recall information about his interview with CI 1, including the informant’s identity or the

way in which the informant confirmed the statements from CI 2. Id.

Although it is common practice for the identifies of confidential informants to be

shared with a supervisor, Officer Schoenbeck, who is a supervisor for Defendants Dye

and Hughey, testified that neither of the informant’s identities were shared with him.

(Doc. 119, p. 10). These identities were also not shared with Officer Curry in her

preparation of the ROI. Id. Accordingly, though Plaintiff has attempted to solicit

information about the informants through other means, he has not been successful. Id.

Though Harris and Ganus were named in the Report of Investigation, Defendant

Dye asserted that both witnesses were also confidential informants in the investigation.

Id. at p. 8. On June 11, 2018, Harris provided a notarized affidavit stating that Defendants

coerced him into identifying Reed and Ganus as responsible for the trafficking. (Doc. 1,

p. 27-30). Harris provided this document to Plaintiff, and it is attached to Plaintiff’s

complaint. (Doc. 1). Harris does not state in the affidavit that he implicated Plaintiff;

however, he also does not deny implicating Plaintiff. Id. at p. 27-30.

Due to the difficulty of obtaining the confidential information related to his

complaint, Plaintiff moved for appointment of counsel on February 11, 2020. (Doc. 37).

After a hearing on the matter, the Court granted Plaintiff’s motion. (Doc. 40). Shortly

thereafter, the parties jointly moved for a protective order, which the Court granted on

May 1, 2020. (Doc. 47). The protective order designated certain information as

confidential material, for attorneys’ eyes only (“AEO”). Id. This information included the

Internal Investigative Report; it also limited Plaintiff’s counsel from disclosing to Plaintiff

the names of any inmate listed in the report. Id. All parties are further required to redact

information related to security threat groups, correctional officers’ personal information,

and the names, nicknames, or statements of confidential informants listed in the report.

Id.

LEGAL STANDARDS

Federal Rule of Civil Procedure 45(a) permits a party to issue a subpoena to

command production of documents or other tangible material in a person’s possession

or control. See FED. R. CIV. PROC. 45(a). A party seeking to quash a subpoena bears the

burden of demonstrating that the subpoena requires the disclosure of privileged

information or subjects the party to an undue burden. See AF Holdings LLC v. Doe, No. 12

C 4222, 2012 WL 5520861, *1 (N.D. Ill. Nov. 13, 2012). “When a court is confronted with a

motion to quash such a subpoena, its duty is not to deny any discovery, but to reduce the

demand to what is reasonable, considering the discoverer’s needs and the discoveree’s

problems.” Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556, 560 (7th Cir. 1984).

When a party issues a subpoena to a non-party, that non-party may move to quash

the subpoena pursuant to Federal Rule of Civil Procedure 45(d)(3)(iv). Courts are

particularly concerned with undue burden or expense to non-parties from compliance

with a subpoena. See Uppal v. Rosalind Franklin Univ. of Med. and Sci., 124 F. Supp.3d 811,

813 (N.D. Ill. 2015) (internal citations omitted). Accordingly, that concern is afforded a

special weight in a court’s evaluation of a motion to quash. Id. (emphasis in original).

Unlike more permissive rules of civil procedure, Rule 45 requires a court to quash or

modify a subpoena which subjects the non-party to undue burden or expense. Id. Though

Plaintiff served Defendant Wills with the subpoena at issue while Defendant Wills was a

non-party to this case, Plaintiff has since added Defendant Wills to the present litigation.

See (Doc. 111). Therefore, the Court no longer applies the same special weight regarding

the potential burden or expense imposed on Defendant Wills incurred while complying

with the subpoena; instead, the Court turns to the more permissive Federal Rule of Civil

Procedure 26 for its analysis.

Unlike Rule 45, Rule 26 (c) grants the Court the discretion to quash or modify a

subpoena if it is unduly burdensome or expensive. Under Rule 26, parties may obtain

discovery into any non-privileged matter relevant to a party’s claim or defense so long as

that discovery is proportional to the needs of the case. See Pegues v. Coe, No. 3:16-CV-

00239-SMY-RJD, 2017 WL 4922198, at *1 (S.D. Ill. Oct. 31, 2017)(citing FED. R. CIV. PROC.

26(1)). The purpose of discovery is to provide a mechanism for making relevant

information available to the litigants. See FED. R. CIV. PROC. 26 advisory committee note

to 1980 amendment. Accordingly, the relevancy requirement is broadly construed to

include matters “that bear on, or that could reasonably lead to other matters that could

bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437

U.S. 340, 351 (1978) (internal citation omitted); see also, FED. R. CIV. PROC. advisory

committee note to 1946 amendment. Nevertheless, the relevancy requirement should be

firmly applied, and a district court should not neglect its power to restrict discovery when

necessary. See Herbert v. Lando, 441 U.S. 153, 177 (1979); Balderston v. Fairbanks Morse

Engine Div. of Coltec Industries, 328 F.3d 309, 320 (7th Cir. 2003); Stephenson v. Florilli

Transportation, LLC, No. 3:18-cv-0103-NJR-DGW, 2018 WL 4699863, at *1 (S.D. Ill. Oct. 1,

2018).

The Court must also consider whether the requested discovery is unreasonably

cumulative or duplicative, whether there have been ample opportunities to discover the

information, or whether any benefit is outweighed by the burden or expense of the

proposed discovery. See FED. R. CIV. PROC. 26(b)(2). The rules strongly encourage the

Court to balance the needs of both parties.

ANALYSIS

I. Whether Plaintiff’s Need for the Confidential Informants’ Identities

Outweighs Defendant Wills’s Burden in Producing that Information

Defendant Wills asserts that the Court should quash Plaintiff’s subpoena because

it exposes him to undue burden; according to Defendant Wills, the subpoena amounts to

a “fishing expedition.” (Doc. 59, p. 3). Furthermore, Defendant Wills states that providing

the identification of the confidential informants could create a security concern for those

inmates, as well as at the locations in which the inmates are imprisoned. Id. at p. 6. In

comparison to what Defendant Wills asserts is little need for the requested information,

Defendant Wills characterizes the burden imposed in producing the identities as

significant.

While Rule 26 provides courts with the discretion to quash or modify unduly

burdensome subpoenas, not all burden related to complying with a subpoena will justify

such an action; the pertinent question is whether the burden of compliance exceeds the

benefit of the production of the material sought. See Northwestern Mem. Hosp. v. Ashcroft,

362 F.3d 923, 927 (7th Cir. 2004). This test requires weighing the following factors: (i)

whether the party subpoenaed is a non-party to the underlying suit, (ii) whether the

information requested is relevant, (iii) whether the party requesting the information has

a substantial need for it, (iv) whether the document request is overly broad, (v) whether

the time period the request covers is reasonable, (vi) whether the request is sufficiently

particular, and (vii) the extent to which the request imposes a burden on the subpoenaed

party. See In re Depakote v. Abbott Labs., Inc., Case No. 14-CV-847-NJR-SCW, 2016 WL

4257520, *1 (S.D. Ill. May 24, 2016) (internal citations omitted). Defendant Wills is now a

party to this suit. Furthermore, Plaintiff requests only the identities of the two unnamed

confidential informants. The Court therefore finds that only factors (ii), (iii), and (vii) are

at issue in this case.

In order to succeed on this claim, Plaintiff must demonstrate that his protected

activity was the “but-for” cause of his punishment, regardless of Defendants’ evidence of

alternative reasons for their actions. See Zellner v. Herrick, 639 F.3d 371, 379 (7th Cir. 2011).

To the extent that Defendants provide evidence that they acted with legitimate

disciplinary motivations in punishing Plaintiff, Plaintiff must then show that those

motivations were pretextual. Id. Whether CI 1 and CI 2 identified Plaintiff as involved in

tobacco trafficking in any undocumented interview is therefore a vital question that

Plaintiff believes he must investigate if he is to prove his case at trial. It is thus clear that

the identities of the confidential informants could lead to the discovery of admissible

evidence, making them relevant for the purposes of Rule 26. See Oppenheimer Fund, Inc.,

437 U.S. at 351 (internal citation omitted).

Plaintiff has also demonstrated significant need for the requested identities. The

extent to which Plaintiff is able to obtain the requested information by other means, and

whether or not Plaintiff has attempted to do so, is an important consideration for

evaluating Plaintiff’s need for the requested information. See, e.g., Brueder v. Board of

Trustees of Community College District No. 502, No. 15 CV 9323, 2020 WL 4676666, *2 (N.D.

Ill. Aug. 12, 2020)(noting that the plaintiff had already exhausted alternative avenues to

obtain responsive documents, thus making the requested discovery less cumulative

because the plaintiff did not have access to those sources). Here, Plaintiff has made

considerable efforts to obtain the information he requires through other means, including

querying Defendants Dye and Hughey, and Officer McCarthy, on the information

gleaned from their interviews with CI 1 and CI 2. However, none of the deponents could

remember the details of the interviews; Defendant Hughey further did not remember

whether he was present in the interview, and Officer McCarthy could not remember the

CIs’ names. As other avenues of obtaining the identities of CI 1 and CI 2 are foreclosed to

Plaintiff, the Court finds that he has a substantial need for the information requested

through this subpoena.

Lastly, though the Court finds that Defendant Wills faces a heavy burden in

complying with the subpoena, it also determines that this burden does not outweigh

Plaintiff’s need for this pertinent information. Identifying the unnamed confidential

informants could inhibit the free flow of information between investigators and other

informants in the prison. See United States v. Jefferson, 252 F.3d 937, 942 (7th Cir. 2001).

Potential identification is not the only possible factor chilling further cooperation

between investigators and prisoners as the realities of prison life make the danger of

retaliation against informants “much more than a theoretical possibility.” Dawson v.

Smith, 719 F.2d 896, 898 (7th Cir. 1983) (internal quotations omitted). As such,

identification could risk physical harm to the informants at the prisons in which they are

housed. See, e.g., Mendoza v. Miller, 779 F.2d 1287, 1293 (7th Cir. 1985)(upholding the

denial of a motion to compel prison investigative reports containing information

regarding confidential informants). While these considerations are typically significant

factors in favor of quashing a subpoena, certain circumstances also mitigate the

significance of these factors in the instant case. As Plaintiff points out, the Court has

already entered a protective order limiting information pertaining to confidential

informants to an AEO basis. See (Doc. 47); (Doc. 119, p. 4). In doing so, the Court could

better balance Plaintiff’s right to full effective assistance of counsel and the necessity of

protecting informants’ identities. See Wagner v. Williford, 804 F.2d 1012, 1017-18 (7th Cir.

1986) (internal citations omitted). As this protective order is designed to prevent the

spread of knowledge regarding the informants’ identities beyond the attorneys in this

case, it substantially reduces the burden Defendant Wills faces in complying with the

subpoena. Accordingly, the Court finds that Plaintiff’s need for the identities of CI 1 and

CI 2 outweigh the burden to Defendant Wills in providing that information.

II. Whether Defendant Wills may Exert the Informers’ Privilege in order to

Prevent Production

During a February 26, 2021 hearing on the motion to quash, Defendant Wills

invoked the informers’ privilege in order to resist producing the confidential informants’

identities. The Government may assert this privilege in order to withhold the

identification of persons who furnish information to law enforcement officers from

disclosure. See Rovario v. United States, 353 U.S. 53, 60 (1957). Though the privilege is

rooted in criminal law, it is also applicable in civil cases. See Dole v. Local 1942, Intern.

Broth. of Elec. Workers, AFL-CIO, 870 F.2d 368, 372 (7th Cir. 1989). The Government may

exercise this privilege as of right; the privilege is designed to reflect the “common sense”

notion that informants whose identities are revealed may face reprisal, which, in turn,

could chill further communication between civilians and law enforcement officers. Id.; see

also Rovario, 353 U.S. at 60.2 The Supreme Court has recognized that informants in drug-

related cases face a unique risk from disclosure of their identities, as these cases often

involve violent reprisals against revealed informants. See United States v. Berder, 5 F.3d

267, 269 (7th Cir. 1993). See also Peate v. McCann, 294 F.3d 879, 885 (7th Cir. 2002)(holding

that the Government has a strong interest in maintaining the confidentiality of files

containing sensitive information regarding on-going investigations).

Although the privilege is particularly strong in civil cases where the party seeking

the information is less likely to have a Constitutional right to the confrontation of

witnesses, it is nevertheless limited by certain vital considerations. See Dole, 870 F.2d at

372. Chief among these considerations is fundamental fairness. See Rovario, 353 U.S. at 60.

The privilege must yield to a balanced measure of the issues and the fair administration

of justice. See Dole, 870 F.2d at 372. Accordingly, when the information requested is

2 Plaintiff argues that Defendant Wills waived this privilege by not raising it in his initial motion to

quash. See (Doc. 119, p. 5). However, because the Government may invoke this privilege as of right, the

Court finds that it has not waived this privilege by omission through Defendant Wills’s initial briefing.

relevant and helpful to the fair determination of a cause, the privilege gives way. See

Rovario, 353 U.S. at 61.

When determining whether fundamental fairness requires the informers’ privilege

to yield in a particular case, much as in a Rule 26 analysis, courts balance the moving

party’s need for the requested information against the non-moving party’s objection to

disclosure. See Moore v. Liszewski, Case No. 11-cv-1148-MJR-SCW, 2012 WL 12943081, *1

(S.D. Ill. Nov. 13, 2012). For instance, in Moore, the Court evaluated the type of

information the plaintiff sought, including whether the sensitive material included

potential gang affiliations or other discrete security issues. Id. The Court also considered

whether the defendant provided evidence to show that the plaintiff’s retaliation against

the unnamed witness was a likely possibility. Id. Moreover, the Court noted that “safe-

guards” against retaliation could further reduce that risk. Id. Lastly, the defendants

provided no evidence that the confidential informants were promised confidentiality in

order to encourage discussion with investigators. Id. These factors weighed heavily in

favor of disclosing the requested investigatory files. Id. The Court determined that

holding otherwise would, “in essence, be saying that anytime the prison conducts an

investigation and produces a report, those reports can never be disclosed because the

prison conducted an investigation, and that is clearly not the rule articulated by the

Seventh Circuit.” Id.

Plaintiff has demonstrated that the identities of CI 1 and CI 2 is both relevant and

helpful to the fair determination of his cause. If Plaintiff is unable to identify either

confidential informant, he will lack the information necessary to determine whether

Defendants Dye and Hughey targeted him for drug trafficking pretextually, rather than

on the basis of bona fide reports. As Plaintiff must establish this element in order to face

any chance of success in his litigation, the fair adjudication of this case requires that the

informers’ privilege yield in this given instance. Plaintiff seeks only the confidential

informants’ names; he has not requested further details which might raise a discrete

security threat, such as gang affiliation or other connections between the informants and

the prison population. Defendant has provided little evidence regarding the risk of

retaliation and has not demonstrated that the confidential informants at issue were

promised anonymity in order to encourage their discussions with investigators.

Furthermore, the disclosure of this information on an AEO basis will further reduce the

risk of retaliation. Accordingly, the Court finds that the informers’ privilege does not

justify granting Defendant Wills’s motion to quash.

CONCLUSION

For the above-stated reasons, Defendant Wills’s motion to quash (Doc. 59) is

DENIED. Any information gleaned from the subpoena at issue pertaining to confidential

informants is to be designated “Confidential - FOR ATTORNEYS’ EYES ONLY.”

IT IS SO ORDERED.

Digitally signed

DATED: September 29, 2021. etep ol [hanes og

09:21:54 -05'00'

GILBERTC.SISON

United States Magistrate Judge

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