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Johnson v. Miskell

United States District Court, M.D. Pennsylvania

June 12, 2018

TIMOTHY JOHNSON, Plaintiff
v.
KEVIN MISKELL, Defendant

          MEMORANDUM

          KANE JUDGE.

         Before the Court is Plaintiff's second motion to compel discovery, combined with a motion to appoint counsel and motion for additional discovery. (Doc. No. 57.) Defendant filed a brief in opposition (Doc. No. 58), and Plaintiff filed a reply brief (Doc. No. 59). The Court granted Defendant leave to file a sur-reply brief (Doc. No. 62), and Defendant filed a sur-reply brief on December 28, 2017 (Doc. No. 63). Plaintiff then filed a motion for reconsideration on January 2, 2018, requesting that this Court deny Defendant's motion to file a sur-reply brief or in the alternative, strike the sur-reply brief from the record. (Doc. No. 64.)

         I. BACKGROUND

         Plaintiff's amended complaint alleges that he was improperly designated to a sex offender treatment program (“SOTP”), resulting in psychological and physical injury and the denial of parole. (Id. at 1.) Having previously filed a motion to compel that was granted by this Court (Doc. No. 55), the substance of Plaintiff's second motion to compel (Doc. No. 57), has been largely addressed by this Court's August 28, 2017 Memorandum (Doc. No. 55). Specifically, in Plaintiff's previous motion to compel, he sought an order compelling Defendant to respond to interrogatory numbers three, six, seven, eight, and nine, and challenged Defendant's objections based on relevancy and security concerns. (Doc. No. 54 at 3, 4.) This Court concluded that the information sought in discovery requests three, six, seven, eight, and nine were relevant and thus discoverable under Federal Rule of Civil Procedure 26. (Id. at 5.)

         Addressing Defendant's contention that the release of such information requested by Plaintiff would pose a security risk, this Court provided that while it “appreciates that certain disclosures of sensitive documents generated by prison personnel may jeopardize institutional security and the individual safety of prison staff, and the potential threat posed by such disclosure is a proper consideration for the court, ” it was unable to “determine the nature of the potential threat posed by such disclosure” on the basis of the bare statements provided by Defendant. (Id. at 6.) Accordingly, the Court directed Defendant to answer interrogatory numbers three, six, seven, eight, and nine, “subject to any appropriate, and fully set forth, objection” such as a security concern. (Id. at 7.)

         Defendant complied with this Court's August 28, 2017 Order (Doc. No. 55), by amending his responses, however, these responses are not to the satisfaction of Plaintiff because Defendant again objects to the disclosure of certain documents citing security concerns (Doc. No. 58). This has prompted Plaintiff to file the instant motion to compel along with a motion to appoint counsel, motion for additional discovery (Doc. No. 57), and a motion for reconsideration of this Court's December 19, 2017 Order granting Defendant's motion for leave to file a sur-reply brief (Doc. No. 64).

         II. DISCUSSION

         A. Plaintiff's Second Motion to Compel

         Central to Plaintiff's instant motion to compel are five interrogatories. Those interrogatories and Defendant's amended/supplemental responses are as follows:

3. State the procedure in effect during February of 2014 for performing a “Static 99 test.” If these procedures are set forth in any job description or other document, produce the documents(s)
Response: Defendant no longer possesses the “Static 99” procedures in use in 2014. By way of further answer, this question is objectionable since it requests confidential information which is not provided to inmates pursuant to DOC policy. Those policies that are available to inmates are present in the prison library, and are available for review. Copies will be provided upon payment of copying costs by the inmate.
Supplemental Response: Defendant supplements this response by attaching the Declaration of John Wetzel, Secretary of the Pennsylvania Department of Corrections, and Robert Marsh, Psy.D., Licensed Psychologist Director for the DOC. These documents amplify and explain the reasons for the fact that the Static 99 procedures are not provided to inmates pursuant to DOC policy.
6. Produce the Department of Corrections' Policy Statement on access to mental health care (“Policy 13.8.1”), including section 11(b), which governs “risk/need assessment”, and outlines how the Department of Corrections evaluates sex offenders. This needs to be the version that was in effect during February of 2014.
Response: OBJECTION. Defendant OBJECTS to this request on the basis that it seeks policy/procedures that are kept confidential for security reasons. The release of these documents would significantly increase the difficulty of DOC staff and administration to effectively maintain care, custody and control of the ...

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