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Taylor v. Gilbert

United States District Court, S.D. Indiana, Terre Haute Division

March 15, 2018

GILBERT, et al. Defendants. UNITED STATES OF AMERICA, Interested Party.



          Rachana Nagin Fischer UNITED STATES ATTORNEY'S OFFICE

          Mary Nold Larimore ICE MILLER LLP

          Shelese M. Woods UNITED STATES ATTORNEY'S OFFICE (Indianapolis)



         This matter is before the Court on Plaintiff's Motion to Compel and for Sanctions Against Bureau of Prisons Terre Haute Indiana for Failure to Respond to Discovery and Produce Memorandum of Hector Rivera. [Dkt. 163.] For the reasons set forth below, the Court DENIES Plaintiff's Motion.

         I. Background

         Plaintiff, Robert Taylor (“Taylor”), is a federal prisoner, who was incarcerated at the United States Penitentiary - Terre Haute (“USP - Terre Haute”) at the times relevant to this lawsuit. He brings this lawsuit under the theory set forth in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). He alleges violations of his Eighth Amendment rights. Specifically, he alleges that four officers assaulted him on November 12, 2014, and January 26, 2015, while he was housed in the Special Housing Unit (“SHU”) of the USP-Terre Haute.

         Plaintiff has served multiple Touhy requests[1] upon non-party Federal Bureau of Prisons (“BOP”). The BOP objected to producing certain documents, asserting the documents are protected by law enforcement investigatory privilege and deliberative process privilege. Plaintiff disputes the BOP's claim of privilege and seeks an order compelling the production of a portion of the documents. Plaintiff further seeks sanctions in relation to the BOP's Rule 30(b)(6) deposition, contending that the witness was not prepared to testify about topics identified in the notice. The Court obtained copies of the documents at issue and reviewed them in camera as part of its decision on this motion.

         II. Discussion

         Prior to addressing the merits of Plaintiff's Motion, the Court will address the BOP's contention that the motion is improper. The BOP asserts that to challenge an agency's response to a Touhy request, Plaintiff must bring a separate direct action in federal court against the BOP under the Administrative Procedures Act ("APA"). [Dkt. 174 at 5.] The BOP's contention is correct only when the underlying action resides in state court. When a state court litigant seeks documents from a non-party federal government agency, the government is shielded by sovereign immunity, which prevents the state court from enforcing the subpoena. Houston Business Journal, Inc. v. Office of the Comptroller, 86 F.3d 1208, 1211-12 (D.C. Cir. 1996). “If the agency refuses to produce the requested documents, the sole remedy for the state-court litigant is to file a collateral action in federal court under the APA. . . A federal-court litigant, on the other hand, can seek to obtain the production of documents from a federal agency by means of a federal subpoena. In federal court, the federal government has waived its sovereign immunity, see 5 U.S.C. § 702, and neither the Federal Housekeeping Statute nor the Touhy decision authorizes a federal agency to withhold documents from a federal court.” Houston Business Journal, Inc., 86 F.3d 1208, 1212; see also Ceroni v. 4Front Engineered Sols., Inc., 793 F.Supp.2d 1268, 1275 (D. Colo. 2011).

         Having determined the motion is proper, the Court must address the appropriate standard of review. There is a split among the circuits as to how to evaluate non-party subpoenas to federal agencies. Although the Seventh Circuit has yet to address the issue, the Eastern District of Wisconsin recently offered this overview:

The District of Columbia and Ninth Circuits hold that this issue should be assessed using FRCP 26 and 45. This is the same, relatively low, bar for discovery that is applied to every civil litigant, and centers on the subpoenaed party's claim of privilege, undue burden, or lack of relevance. Conversely, the Fourth and Eleventh Circuits maintain that an agency's refusal to comply with a subpoena is entitled to more deference. The standard they apply comes from the Administrative Procedures Act (“APA”), which provides that the agency's decision cannot be disturbed unless it was arbitrary or capricious. 5 U.S.C. § 706(a)(A).

Estate of Williams v. City of Milwaukee, 2017 WL 1251193, at *2 (E.D. Wis. 2017). Noting that analysis under the discovery rules is the “more modern” standard, the court elected not to choose, finding instead that the motion at hand must be granted even under the more restrictive APA standard. Id. In this case, the Court finds the converse is true: even under the more liberal discovery standard, the motion must be denied because the documents at issue are either privileged or not relevant to Plaintiff's lawsuit.

         A. Rivera Memo

         This five-page memorandum was prepared by Hector Rivera, an agent with the Office of Internal Affairs (“OIA”), following the investigation into the alleged incidents. The BOP asserts the Rivera Memo includes a summary of Agent Rivera's investigation, his mental impressions, and his recommendation to the Supervisor Agent. [Dkt. 174 at 10.] It was pre-decisional and deliberative, as opposed to the agency's final decision, which was produced. Consequently, the BOP contends the memo is privileged pursuant to the law enforcement investigatory privilege and the deliberative process privilege. The BOP notes the Rivera Memo is the only document in the OIA investigative packet that it withheld from production. [Dkt. 174 at 10.]

         Plaintiff asserts the BOP has not established that either privilege applies to the memo, or, in the alternative, that the privileges should be overridden based upon Plaintiff's need for the document. Plaintiff further disputes that the BOP properly preserved the privilege in its Touhy response letter. Addressing the last issue first, while the BOP did not use the term “law enforcement investigatory privilege” or “deliberative process privilege” in its response, it did note the reason for withholding the memo and cite the appropriate regulation:

The BOP agrees to produce the file, and produces it contemporaneously with this letter, with the exception of one document in the file: a 5-page memorandum from Hector Rivera providing his summary of the investigation and recommendation. The document is pre-decisional and compiled for law enforcement purposes, and therefore privileged. The record is not subject to disclosure pursuant to 28 C.F.R. § 16.26(b)(5).

         [Dkt. 163-6 at 2.]

         The purpose of the law enforcement investigatory privilege “is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witnesses and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise prevent interference in an investigation.” Jones v. City ofIndianapolis, 216 F.R.D. 440, 444 (S.D. Ind. 2003) (internal citation omitted); see also 28 C.F.R. § 16.26(b)(5). Similarly, the deliberative process privilege protects communications that are part of a government agency's decision-making process. U.S. v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993). The privilege “rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance ‘the quality of ...

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