GENE E.K. PRATTER, District Judge.
Shawn T. Walker is incarcerated at SCI-Graterford, which is operated by the Pennsylvania Department of Corrections. Mr. Walker has, over the past five years, brought several claims against various DOC officials, but only two claims—each alleging first amendment retaliation by retired Unit Manager Frank Regan—remain. The discovery issues presented here all stem from Mr. Walker's first claim, which is premised on his assertion that he was placed on "H-Code"—or high risk—status by Mr. Regan, as retaliation for filing two grievances about a prison official and refusing to voluntarily cede his single-occupancy cell.
In pursuit of his retaliation claim, Mr. Walker directed the two at-issue discovery requests towards non-party Secretary of Corrections John Wetzel. First, Mr. Walker requested DOC's H-Code policy. Second, Mr. Walker attempted to subpoena two "vote sheets," which relate to decisions made by DOC officials after Mr. Walker was placed on H-Code status. For the reasons identified below, Mr. Walker is not entitled to production of any of the documents requested.
Mr. Walker is serving a life sentence at SCI-Graterford. Mr. Walker has filed at least two grievances against prison officials while incarcerated. According to Mr. Walker, in July 2013, after he filed those grievances, Unit Manager Frank Regan held a meeting with Mr. Walker and several other prison officials to discuss whether Mr. Walker should retain his "Z-Code" status— which allowed him a single cell. Mr. Walker argues that, in retaliation for the previously filed grievances and refusing to voluntarily give up his Z-Code status, Mr. Regan (and the other prison officials at the meeting) designated Mr. Walker with H-Code status. H-Code status indicates that a prisoner is high-risk, and it disqualifies the prisoner from certain privileges.
After Mr. Walker was assigned an H-Code designation, he was subject to multiple "staffings," during which prison officials met to vote on decisions relating to Mr. Walker. Votes are recorded on "vote sheets," which also identify criteria for custody levels and allow prison officials to opine about the status of inmates. During one staffing, on or around July 26, 2013, prison officials voted to remove Mr. Walker from his job as a tutor. During another staffing, on or around October 30, 2013, prison officials voted to remove Mr. Walker's H-Code designation. Mr. Regan was not involved in either staffing after the decision to assign Mr. Walker H-Code status.
There are two separate discovery issues here: (1) Mr. Walker's request for DOC's H-Code policy and (2) his request for vote sheets from the two post-H-Code staffings.
On May 14, 2018, shortly before Mr. Regan filed his outstanding Motion for Summary Judgment, Mr. Walker moved the Court to compel Mr. Regan to produce DOC's H-Code policy. Doc. No. 93. Mr. Regan opposed the Motion to Compel, arguing that because he was retired and no longer had access to the policy, he could not produce the document. Doc. No. 95. The Court agreed that it could not "compel [Mr. Regan] to produce that which he does not have," and so it denied Mr. Walker's Motion to Compel on September 4, 2018. Doc. No. 103.
Shortly thereafter, on September 11, 2018, Mr. Walker sought to compel the H-Code policy from non-party DOC Secretary Wetzel instead. Doc. No. 106. The Court denied Mr. Walker's Motion to Compel because, although Secretary Wetzel appeared to be the correct party from whom to seek discovery of the H-Code policy, Mr. Walker had not previously submitted discovery requests, or otherwise provided notice, to Secretary Wetzel. Doc. No. 109. In a footnote, the Court "urge[d] counsel for [Mr. Regan] to confer with [Secretary] Wetzel as to whether [Secretary] Wetzel will allow counsel for [Mr. Regan] to accept, on [Secretary] Wetzel's behalf, service of any discovery requests," because "counsel for [Mr. Regan] formerly represented [Secretary] Wetzel in this action."
On November 15, 2018, Mr. Walker filed a "Notice to the Court," which included as an attachment a copy of a letter from Mr. Regan's counsel to Mr. Walker. Doc. No. 120. The letter responded to Mr. Walker's request for DOC's H-Code policy, noted the Court's suggestion that counsel confer with Mr. Walker, referred Mr. Walker to Mr. Regan's discovery responses and a declaration filed in support of his Motion for Summary Judgment, and attached portions of the H-Code policy, in heavily redacted form.
Mr. Walker argued in his Notice that the H-Code policy was "so redacted it [wa]s useless to [him]."
Separately, on January 9, 2019, Mr. Walker moved to compel discovery and enforce a subpoena against Secretary Wetzel. Doc. No. 126. Mr. Walker sought two vote sheets, each from decisions made by DOC personnel after Mr. Walker was designated with H-Code status. Mr. Walker sought (1) the vote sheet from the decision to remove Mr. Walker from his job as a tutor, and (2) the vote sheet from the decision to remove Mr. Walker's H-Code designation.
For both sets of discovery requests, Secretary Wetzel makes two arguments as to why the Court should not order production. First, Secretary Wetzel argues that the documents are protected by the deliberative process privilege. Second, Secretary Wetzel argues that the documents are privileged because they represent a security risk. The Court addresses each privilege argument in turn.
"The deliberative process privilege permits the government to withhold documents containing confidential deliberations of law or policymaking, reflecting opinions, recommendations or advice."
Once the government or a government official has made a prima facie showing that the privilege applies, the Court conducts a balancing analysis. It must "balance the competing interests of the parties," and "[t]he party seeking discovery bears the burden of showing that its need for the documents outweighs the government's interest."
Secretary Wetzel incorrectly argues that the H-Code policy is protected by the deliberative process privilege. According to Secretary Wetzel, the H-Code policy is both "pre-decisional" and "deliberative."
The requested vote sheets, unlike the H-Code policy, are quintessential examples of documents protected by the deliberative process privilege.
Mr. Walker has not carried his burden of establishing a need for the vote sheets. Indeed, according to Secretary Wetzel, the only remaining defendant in this action—Mr. Regan—did not participate in either of the votes recorded by the at-issue vote sheets.
Although the H-Code policy is not protected by the deliberative process privilege, that does not end the Court's inquiry. Numerous district courts in this circuit have held that "[w]hen discoverable information raises institutional and security concerns, the court must balance the need for the information and the extent the information compromises security."
Here, the Court has conducted an in camera review of the H-Code policy and the other portions of the DOC Manual referring to the policy. Further, it has reviewed the descriptions of the H-Code policy that Mr. Regan already provided to Mr. Walker, via (1) Mr. Regan's Responses to Mr. Walker's Requests for Admission,
First, based upon the materials produced to Mr. Walker by Mr. Regan during discovery, Mr. Walker already has some information about the H-Code policy. For example, Mr. Regan's discovery responses show that H-Code status "indicates high risk" and that inmates with that status may "have a high potential for repeating a demonstrated assaultive behavior with the intent to cause death or serious bodily injury." MSJ Ex. D3;
Second, the Court agrees with Secretary Wetzel that, if he provides Mr. Walker with the H-Code policy—and the more in-depth description of behaviors that may warrant H-Code status included therein, Mr. Walker could potentially (1) use this information himself "to manipulate future decisions," including those related to "preferred cell assignments, jobs, and other outcomes," or (2) "share that information with other inmates." Doc. No. 124-1 ¶¶ 8-9, 13 (Decl. of Secretary Wetzel). Because either possibility represents a "substantial security risk," this outbalances Mr. Walker's need for additional information about the H-Code policy beyond the context already provided in discovery.
The Court is mindful of Mr. Walker's understandable desire for as much relevant information as possible to prosecute his claims. But Mr. Walker's interest in obtaining the at-issue documents is outweighed by the Department of Corrections' interest in ensuring that its internal policies and records cannot be used to compromise prison security. For those and the foregoing reasons, the Court will grant Secretary Wetzel a Protective Order whereby he need not produce the H-Code Policy, and the Court will quash Mr. Walker's subpoena requesting production of two vote sheets. An appropriate order follows.
Moreover, the one disclosed vote sheet, the vote sheet related to the assignment of H-Code status to Mr. Walker, has a
Doc. No. 128-1 ¶ 9 (Decl. of Secretary Wetzel).
Although the Third Circuit Court of Appeals does not appear to have had cause to scrutinize the propriety of inmates' discovery requests that implicate prison security, the courts of appeals in other circuits have affirmed district courts' decisions not to allow discovery that threatened prison safety.
