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”). (Doc. 1).

Defendants Dye and Hughey have asserted that they identified Plaintiff as involved in

the tobacco trafficking on the basis of confidential informants, two of whom were initially

unnamed in the discovery provided to Plaintiff. (Doc. 125).

Plaintiff served a subpoena on Warden Anthony Wills prior to adding him as a

party to this suit. Through this subpoena, Plaintiff sought the disclosure of the two

unnamed informants. (Doc. 125). Defendant Wills moved to quash the subpoena. (Doc.

57). During the pendency of the motion to quash, Plaintiff added Defendant Wills to the

lawsuit. (Doc. 111). Because Defendant Wills became a party to the litigation, the Court

denied the motion to quash. (Doc. 120).

Defendant Wills timely filed a supplemental response to Plaintiff’s subpoena,

identifying CS 1,1 an inmate in the custody of the IDOC, as one of the informants. (Doc.

125). Before the Court is Plaintiff’s motion to depose CS 1. Id. For the reasons delineated

below, the motion to depose is GRANTED.

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 investigation indicates 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 unnamed confidential

source allegedly identified Plaintiff as a tobacco trafficker after Plaintiff denied

knowledge of the trafficking. (Doc. 64, p. 7, 9). Defendant Wills states that he has no

1 Pursuant to a protective order, the parties have identified the confidential source by name in

discovery, on an Attorneys’ Eyes Only basis. (Doc. 47). As such, the name shall remain confidential in this

Memorandum and Order.

information or knowledge regarding the identity of one of the informants; however, the

other informant is CS 1. (Doc. 125, p. 2).

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 inmates 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

Parties must request leave of the Court in order to take the deposition of a person

currently confined in prison. See FED. R. CIV. PROC. 30(a)(2)(B). The Court evaluates a

motion to depose a person confined in prison under the standards outlined in Rule

26(b)(1) & (2). See FED. R. CIV. PROC. 30(a)(2); see also Cooper v. Roach, 19-cv-159-jdp, 2019

WL 5682899, at *1 (W.D. Wisc. Nov. 1, 2019). Under Federal Rule of Civil Procedure 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. While a deposition may be limited, the non-

moving party must demonstrate exceptional circumstances in order to justify completely

prohibiting the moving party from taking a deposition. See CSC Holdings, Inc. v. Redisi,

309 F.3d 988, 993 (7th Cir. 2002).

ANALYSIS

Both Plaintiff and Defendant Wills refer to arguments asserted in previous

motions in order to support their positions. Plaintiff notes that he is willing to conduct

this deposition virtually and that the transcripts of the deposition would be marked

Attorneys’ Eyes Only pursuant to the parties’ protective order, as was the case when

Plaintiff first moved to depose informants currently confined in prison. (Doc. 125, p. 2).

In contrast, Defendant Wills states that he maintains his previously articulated objections

described in his initial motion to quash and supplement thereto. (Doc. 129, p. 3).

As outlined in their prior motions, the parties dispute whether the deposition is

necessary for Plaintiff to succeed on his claim, or whether the request to depose CS 1 is

merely a “fishing expedition.” (Doc. 59, p. 3). Plaintiff asserts that the informants who

allegedly identified him as trafficking tobacco will provide information critical to his

claim that Defendants Dye and Hughey retaliated against him in violation of the First

Amendment. (Doc. 56, p. 2; Doc. 72, p. 2). 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 CS 1 identified

Plaintiff as involved in tobacco trafficking in any undocumented interview, and whether

he did so under coercion, are therefore vital questions that Plaintiff believes he must

investigate if he is to prove his case at trial.

The extent to which Plaintiff may obtain the requested information by other

means, and whether or not Plaintiff has attempted to do so, does bear on the Court’s

evaluation of the proportionality of Plaintiff’s request. See, e.g., Breuder v. Board of Trustees

of Community College District No. 502, No. 15 CV 9323, 2020 WL 4676666, at *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). This evaluation is as applicable

to topics discussed in deposition as it is to the discovery of documents and other tangible

items. See Travelers Property Casualty Insurance Company, No. 12 C 02386, 2013 WL 1343163,

at *3 (N.D. Ill. Apr. 2, 2013). If Plaintiff is able to obtain the information he seeks through

a means less costly or less of a security risk than a deposition, then the balancing analysis

of weighing the harm to Defendant Wills versus the benefit to Plaintiff would tilt in

Defendant Wills’s favor.

The Court granted Plaintiff’s initial motions to depose a person confined in prison

in large part because no interview transcript existed by which Plaintiff could glean

whether the informants identified him as trafficking in tobacco. See (Doc. 109). Here,

Defendant Wills provides no evidence that Plaintiff may obtain the information necessary

to his case by other means. Accordingly, the Court finds that the balance of the equities

favors Plaintiff, as the information could prove vital to his case.

Defendant Wills also asserted in his initial motion to quash that permitting a

deposition of an unnamed informant would create a security threat by providing inmates

with access to what information is typically gathered during an investigation and how

the department conducts such investigations. (Doc. 70, p. 3). The Court acknowledges

that identifying CS 1 as a confidential informant by requiring his deposition 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, participating in a deposition could substantially endanger

CS 1’s physical security at the prison in which he is 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 typically weigh in favor of denying a motion to depose,

certain circumstances also mitigate the significance of these factors in the instant case.

First, the Court has already entered a protective order limiting information pertaining to

confidential informants to an AEO basis. See (Doc. 47). That order could easily be

expanded to include information from any deposition. In doing so, the Court could better

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

protecting informant identity. See Wagner v. Williford, 804 F.2d 1012, 1017-18 (7th Cir.

1986) (internal citations omitted). Second, as in the case of the previous motions to

depose, Plaintiff’s attorneys have again requested that the depositions be conducted

virtually, further reducing the likelihood that another inmate could see CS 1 being

deposed by lawyers and infer that CS 1 is a confidential informant or witness in a case.

(Doc. 125, p. 3). Rather, if such a deposition is conducted virtually, it would simply appear

as if CS 1 had a remote hearing in court, which would not appear to be out of the ordinary.

The Court finds that these factors considerably reduce the burden to Defendant Wills and

CS 1 regarding the requested deposition.

In an abundance of caution, the Court limits the topics in the deposition to whether

CS 1 identified Plaintiff during the tobacco trafficking investigation and whether he was

coerced to identify Plaintiff or other inmates. Furthermore, Plaintiff may not attend this

deposition, and any transcript of the deposition or information gleaned from the

deposition is to be marked confidential, on an AEO basis.

CONCLUSION

For the above-stated reasons, Plaintiff's motion to depose an inmate currently

confined in prison (Doc. 125) is GRANTED. Plaintiff is not permitted to attend this

depositions, and any transcript of this deposition is to be marked “Confidential - FOR

ATTORNEYS’ EYES ONLY.”

IT IS SO ORDERED.

Digitally signed

DATED: December 7, 2021. Litter o. ewer Sison 2

13:29:53 -06'00'

GILBERTC.SISON

United States Magistrate Judge

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