The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRANDON MOODY, : Civil No. 3:18-cv-53
Plaintiff (Judge Mariani)
v. .
JOHN WETZEL, et al, .
Defendants .
MEMORANDUM
Plaintiff Brandon Moody (“Moody”), a state inmate in the custody of the Pennsylvania
Department of Corrections (“DOC”), initiated this action pursuant to 42 U.S.C. § 1983.
Presently before the Court is Moody’s motion (Doc. 129) to compel discovery. For the
reasons set forth below, the motion will be denied.
I. Factual Background & Procedural History
The events giving rise to Moody’s cause of action stem from his placement on the
Restricted Release List (“RRL”). Moody alleges that Defendants placed him on the RRL
and held him in solitary confinement for more than five years without any rational
penological security interest and without any meaningful review. (Doc. 45). The parties
have engaged in discovery. Moody previously filed a motion to compel. (Doc. 68). The
Court granted the motion, in part, and directed Defendants to submit the requested
documents to the Court for in camera review. (Doc. 87). After reviewing the requested
documents in camera, the Court issued an Order directing that the names of staff, other
than the three named Defendants, could be redacted to protect their identities and that the
production of the records will be governed by any applicable privileges, including, but not
limited to, attorney-client, work product, and/or mental impressions. (Doc. 109).
Defendants subsequently produced the records, in redacted form, to Moody. (Doc. 130, p.
2). Moody then filed the instant motion to compel. (Doc. 129). The motion is ripe for
resolution.
ll. Legal Standard
A party who has received evasive or incomplete discovery responses may seek a
court order compelling disclosures or discovery of the materials sought. FED. R. CIV. P.
37(a). The moving party must demonstrate the relevance of the information sought to a
particular claim or defense. The burden then shifts to the opposing party, who must
demonstrate in specific terms why a discovery request does not fall within the broad scope
of discovery or is otherwise privileged or improper. Goodman v. Wagner, 553 F. Supp. 255,
258 (E.D. Pa. 1982).
Generally, courts afford considerable latitude in discovery in order to ensure that
litigation proceeds with “the fullest possible knowledge of the issues and facts before trial.”
Hickman v. Taylor, 329 U.S. 495, 501 (1947). Federal Rule of Civil Procedure 26(b)(1)
provides that a party “may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case. . .
Information within this scope of discovery need not be admissible in evidence to be
discoverable.” FED. R. CIV. P. 26(b)(1). “[A]il relevant material is discoverable unless an
applicable evidentiary privilege is asserted. The presumption that such matter is
discoverable, however, is defeasible.” Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000).
Furthermore, the court may limit discovery if the discovery sought is unreasonably
cumulative, duplicative, or readily obtainable from some other source, the party seeking
discovery has had ample opportunity to obtain the information through discovery, or the
proposed discovery is outside the scope permitted by Rule 26(b)(1). FED. R. Civ. P.
26(b)(2)(C).
lll. Discussion
Moody takes issue with several of Defendants’ responses to his discovery requests.
(Doc. 129). He seeks production of the following documents:
1. All of the annual RRL psychological evaluations, specifically including
those dated 12/12/13 (DEF000009) and 1/15/16 (DEF000074-76)
2. All the transfer petitions including those dated 1/6/13 (DEF000016-17)
3. All the inmate query-separations dated 11/5/13 (DEF000019), no date
(DEF000070), and (DEF000108)
4. All the Inmate Cumulative Adjustment Records (ICAR), including those
dated 11/5/13 (DEF000036-46) and 4/18/16 (DEF000065-69)
5. All the DC-46 Vote Sheets, including the one dated 4/18/14
(DEF000061)
6. The two (2) memos to John Wetzel dated 7/7/17 (DEF000085) and
6/6/16 (DEF000087)
7. Unidentified document completely redacted (DEF000088)
8. All the RRL checklist, including the one with no date (DEF000089)
9, Memo from SMU/RHU staff to Deputy Secretary (DEF000090)
10. Integrated Case Summary (DEF000097-107)
(Doc. 144).
In response, Defendants maintain their objections to producing the information that
was redacted from the RRL related records produced to Moody, with one exception. (Doc.
145). After reviewing pages of DEF000090-91, Defendants inadvertently redacted the
names of the Defendants in this civil action, which they intended to disclose. Defendants
indicate that they will make a revised copy of these pages available to Moody, disclosing the
names of Defendants reflected on those pages. Defendants object to the remaining
requests. The Court will address each request in turn.
1. All of the annual RRL psychological evaluations, specifically including
those dated 12/12/13 (DEF000009) and 1/15/16 (DEF000074-76)
In his first request, Moody seeks all of the annual RRL psychological evaluations,
including those dated December 12, 2013, and January 15, 2016. Defendants have
objected to this request because “[d]isclosure of these records in full to the Plaintiff poses
several threats to the security of Department institutions.” (Doc. 145, p. 6). In support of
their argument, Defendants have submitted the declaration of former Secretary John
Wetzel, wherein he lists the following specific security threats:
e \nmates would learn the factors considered and evaluated by the mental
health staff when conducting an annual RRL psychological evaluation. Such
information would be used to manipulate behavior during future psychological
reviews in order to obtain release from the RRL, even when for security
reasons or other operational concerns, such a release would be
inappropriate.
e Inmates would use information contained in the Annual Psychological
Evaluation to retaliate against the mental health staff for reporting unfavorable
information or making unfavorable recommendations, which makes the
mental health staff less likely to be candid in their review of inmates.
e The relationship between the mental health professionals and inmate is
based upon trust. Disclosure of the mental health professional's candid
thoughts and opinions regarding the inmate and the risk associated with
releasing that inmate from the RRL would destroy the trust relationship.
Destruction of the trust relationship would lead to an inmate’s refusal to speak
to the mental health staff which could ultimately compromise the mental
health of the inmate.
e Release of the mental health professional's candid thoughts and opinions
regarding an inmate would have a chilling effect of the rapport between the
mental health staff and other inmates once it is learned that the mental health
professional has reported unfavorable information or made unfavorable
recommendations with respect to other inmates.
e If mental health staff know that inmates will have access to their comments
and evaluations of an inmate’s suitability for release from the RRL, they will
be less likely to provide such information candidly. It is imperative that mental
health staff be candid when presenting recommendations for or against RRL
release. Without reliable information, inmates might be released from the
RRL when it is unsafe to do so.
(Doc. 84-2, pp. 7-8, J 19).
Due to these security concerns, Defendants produced portions of the reports to
Moody. For example, Defendants explain that they produced dates of testing, verbal
reports made by Moody to staff, his history of misconducts, his current status, factors about
his offense and personal history, and his compliance with medication regimen. Defendants
redacted the information reflecting the psychologist’s mental impressions of Moody and his
impressions of the risk attenuators and treatment summary pertaining to Moody. The Court
agrees with Defendants that this information could compromise security. Moody's motion
with respect to request number one is therefore denied.
2. All the transfer petitions (DEF000016-17)
Moody next seeks the full disclosure of all information reflected on two transfer
petitions. Defendants oppose disclosure of this information on the ground that it is
privileged and confidential. In support of their response, Defendants refer to the declaration
of Tabb Bickell, Executive Deputy Secretary for Institutional Operations, who states that:
e Security staff conduct investigations and provide their assessment of various
inmate activity including potential security threat group (colloquially known as
gangs) activity, the reasons for separations from other inmates and staff, the
reasons for transferring an inmate to a new institution, and other general risks
that an inmate may pose to institutional safety.
e If any of this information is disclosed to inmates, inmates will know the
underlying considerations made by the Department with respect to major
decisions affecting their housing and how they are identified and classified—
whether they are identified as being involved with certain activity or not, and
whether or not they have been “compromised.”
e Thus, the release of this information will likely [] result in constraining the
ability of security staff to successfully investigate and track inmate activity
including potential criminal activity.
e Thus, this is likely to result in an increase of criminal activity such as the
introduction of contraband into institutions.
(Doc. 145-2, pp. 9-10, J] 35-38).
Defendants state that they produced the requested documents in redacted form.
The redacted information includes the names of staff and the reason prompting the need to
transfer Moody to new institutions. Defendants have satisfactorily established that
production of the requested materials could jeopardize institutional security interests.
Moody's request for the transfer petitions will be denied.
3. All the inmate query-separations dated 11/5/13 (DEF000019), no date
(DEF000070), and (DEF000108)
Moody seeks the full disclosure of a record reflecting from whom he should be
separated within the Department. Defendants contend that security concerns counsel
against disclosure of the “inmate query-separations.” Defendants maintain that disclosure
of such documents “will lead to security staff being less effective with their investigations,
resulting in an increase of criminal activity in the institutions.” (Doc. 145, p. 9). The Court
agrees with Defendants. Disclosure of sensitive documents generated by prison personnel
may jeopardize institutional security and individual safety of prison staff, and the potential
threat posed by such disclosure is a proper consideration for the Court. Moody’s motion to
compel will be denied with respect to the inmate query-separations.
4, All the Inmate Cumulative Adjustment Records (ICARs), including
those dated 11/5/13 (DEF000036-46) and 4/18/16 (DEF000065-69)
Moody next asks Defendants to provide him with his Inmate Cumulative Adjustment
Records in full. Defendants have represented that these records consist of documents that
staff use to record notes of their contacts with Moody, and that they have disclosed almost
the entirety of Moody’s ICARs to him. The documents produced to Moody contain notes of
staff's contacts with him that were considered by Secretary Wetzel in his decisions for
Moody’s placement on the RRL. The only information that was redacted were the names of
staff members who made the notations. According to Defendants, these forms contain
sensitive inmate information, and the full disclosure of these forms would likely cause staff
to not record such sensitive information because inmates would “target those staff with
harassment, threats, or physical harm.” (Doc. 145, p. 10). The Court finds that the Inmate
Cumulative Adjustment Records are privileged and confidential as they contain sensitive
information that could pose a security risk to staff, inmates, and the institution as a whole if
disclosed in their entirety to an inmate. As such, the Court denies Moody's request for his
entire Inmate Cumulative Adjustment Records.
5. All the DC-46 Vote Sheets (DEF000061)
Moody seeks the release of each vote sheet in full. Vote sheets record the vote
and rationale for each major staff decision that affects an inmate. (Doc. 83-2, p. 4, 7 9:
83-3, p. 6, ] 24). Defendants point to the declaration of Erin Brown, Director of the Office of
Population Management, in which she states that vote sheets contain privileged and
confidential information, much of which is intentionally not disclosed to the inmate as it could
pose a risk to the security of the institution and the safety of staff and inmates. (Doc. 84-3,
p. 6, J] 25-27). The Court agrees. Because providing Moody with the vote sheets listing
the names of the staff members who in participated in the RRL review process is
confidential and privileged and would present an obvious security risk, Moody’s motion will
be denied in this regard.
6. The two memos to John Wetzel (DEF000085) (DEF000087)
Moody next seeks the full disclosure of two memoranda that were sent to former
Secretary Wetzel. Defendants maintain that these memoranda were produced to Moody in
their entirety, with the exception of certain staff names including the name of the author of
the memoranda. Defendants thus object to this request on both security risk and relevance
grounds. The Court concludes that the names of the non-defendant individuals in these
memoranda are irrelevant to the claims before the Court and legitimate security concerns
outweigh any relevance that these documents have to Moody’s claims. His request for the
full disclosure of the memoranda will be denied.
7. Unidentified document completely redacted (DEF000088)
Moody also seeks the disclosure of a document which was redacted in its entirety.
Defendants explain that the document was an email communication between an attorney
who represents the Department and staff of the Department. Defendants again point to
Tabb Bickell’s declaration in which he states that the page was redacted “to protect
attorney-client privileged information” and the email “document{s] the efforts of legal counsel
to provide guidance to staff, and convey counsel’s legal conclusions, opinions, and
theories.” (Doc. 145-2, p. 14, 47-48).
The attorney-client privilege applies to: “(1) a communication (2) made between
privileged persons (3) in confidence (4) for the purposes of obtaining or providing legal
assistance for the client.” /n re Teleglobe Communications Corp., 493 F.3d 345, 359 (3d
Cir. 2007) (citing Restatement (Third) of the Law Governing Lawyers § 68 (2000)).
“Privileged persons’ include the client, the attorney(s), and any of their agents that help
facilitate attorney-client communications or the legal representation.” /d. (citing
Restatement (Third) of Law Governing Lawyers § 70). Based on Defendants’
representation, this email disseminates legal advice, and they have not otherwise disclosed
this confidential communication. Therefore, the Court finds that the email is protected by
the attorney-client privilege and the Court will not require production of the redacted email.
8. All the RRL checklists (DEF000089)
Moody seeks the full disclosure of the RRL checklist. Defendants refer to the
declaration of former Secretary Wetzel, which details the security concerns of the DOC with
respect to these documents. (Doc. 84-2, pp. 8-9, J] 20-21). In his declaration, Secretary
Wetzel explains that the RRL checklist is a form that provides a summary of the documents
10
contained in the “RRL Review Packet.” (/d. § 20). The packet includes the Annual RRL
Review From, vote sheets, Integrated Case Summary-Classifications, Inmate Cumulative
Adjustment Records, separations, psychological evaluations, and misconducts. (Id. J] 20).
The DOC has legitimate security concerns regarding the release of this information. For
example, as previously stated, the vote sheets detail the reasons for RRL classification,
which if disseminated, could result in inmates manipulating their behaviors to obtain release
from the RRL. (Doc. 84-3, p. 6, ff 25-27). Additionally, the release of a vote sheet may
result in harassment or threats in retaliation for a staff member’s vote to place an inmate on
the RRL. (Doc. 84-2, p. 4,910). Thus, the Court declines to compel production of all RRL
checklists based on legitimate security concerns.
9. Memo from SMU/RHU staff to Deputy Secretary (DEF000090)
Next, Moody seeks the full disclosure of a memorandum from staff to the Deputy
Secretary that contains a recommendation to progress Moody to the next phase of the SMU
Program and to remove him from the RRL. Defendants note that they mistakenly redacted
the names of Defendants in this civil action from the memorandum, and that they will make
a revised copy of these pages available to Moody, with the names of Defendants disclosed.
Defendants object to the remainder of Moody’s request based on security risk
grounds. Defendants maintain that disclosure of this memorandum would discourage staff
from entering candid opinions, evaluations, and observations. The Court finds that the
memorandum, created by institutional personnel, is generally not turned over to inmates
11
due to legitimate security concerns. The Court will deny Moody's motion to compel full
disclosure of the memorandum.
10. Integrated Case Summary (DEF000097-107)
Lastly, Moody seeks the full disclosure of the Integrated Case Summary reflected in
his RRL records. Defendants indicate that they produced this document in redacted form.
Defendants redacted information collected by security or other staff with their mental
impressions that may not otherwise be known to inmates. According to Defendants, the
case summary provides information relating to the inmate’s classification information and
contains evaluations and assessments, and the separations document identifies prison staff
and other inmates who, for security reasons, are not to be located within the same
institution with the subject inmate. (Doc. 145-2, p. 9-10, J] 35-36). Defendants assert that
disclosure of such documents could pose a security risk to staff, inmates, and the institution
as awhole. (/d. 37-38). The Court again finds that disclosure of this sensitive document
may jeopardize institutional security and individual safety of prison staff. Moody's motion to
compel this document will be denied.
12
iV. Conclusion
The Court will deny Moody's motion to compel. (Doc. 129). A separate Order shall
issue.
; Sy
PALM |
. obert D. Mariani
United States District Judge
Dated: August , 2023
13