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Reese v. Liberty

United States District Court, D. Maine

October 25, 2019

RANDALL LIBERTY, et al., Defendants


          John H. Rich III United States Magistrate Judge.

         In this civil rights case arising from the alleged use of excessive force against the plaintiff, a prisoner at Maine State Prison (“Prison”), when corrections officers sprayed him with a chemical agent during a so-called “cell extraction” in May 2016, see First Amended Complaint (ECF No. 32) ¶¶ 1, 14-16, the defendants seek to retain “attorneys' eyes only” designations as to three categories of documents and related testimony, see generally Defendants' Motion To Retain Confidentiality Designations (“Motion”) (ECF No. 28). I conclude that the defendants have shown the requisite good cause to retain that designation based on prison safety and security concerns and, accordingly, grant the Motion.

         I. Applicable Legal Standards

         The parties' confidentiality order provides, in relevant part:

[The] defendants may designate certain Department of Corrections policies, and other information as “Confidential - Not to be disclosed to Plaintiff.” When such documents and information are so designated, plaintiff's counsel may not disclose the documents to plaintiff without a further order and specific permission of the Court and upon such terms as the Court shall set.

         Consent Confidentiality Order (“Confidentiality Order”) (ECF No. 16) ¶ 6(b)(2). The Confidentiality Order provides that a party may object to the designation of a document as confidential, following which the objecting party and the designating party must meet and confer to attempt to resolve the objection in good faith. See id. ¶ 9(a)-(b). Failing such resolution, the designating party may file a motion to retain its designation, with respect to which it bears “the burden to show good cause” for the designation's retention. Id. ¶ 9(c); see also Fed. R. Civ. P. 26(c)(1) (court may issue protective order on showing of “good cause”).

         “A finding of good cause must be based on a particular factual demonstration of potential harm, not on conclusory statements.” Anderson v. Cryovac, Inc., 805 F.2d 1, 7 (1st Cir. 1986). The “good cause” standard “is a flexible one that requires an individualized balancing of the many interests that may be present in a particular case.” Gill v. Gulfstream Park Racing Ass'n, Inc., 399 F.3d 391, 402 (1st Cir. 2005) (citation and internal quotation marks omitted).

         II. Background

         Pursuant to the Confidentiality Order, the plaintiff objected to the defendants' designation of four categories of documents, as well as portions of deposition transcripts discussing those documents, as for attorneys' eyes only. See Plaintiff's Objections to Defendants' Confidentiality Order Designations, Exh. A (ECF No. 28-1) to Motion. The parties conferred and resolved their dispute over one category of documents, leaving the following three categories (and relevant portions of deposition transcripts) at issue: (i) 2016 Department of Corrections (“DOC”) policies governing the use of force, including the use of chemical agents and cell extractions, (ii) 2016 DOC training materials on cell extraction procedures, and (iii) the 2016 Instructor Manual for Sabre OC Aerosol Projectors (“2016 Sabre Manual”). See generally Motion; Plaintiff's Opposition to Attorneys' Eyes Only Confidentiality Designation (“Opposition”) (ECF No. 29) at 4-6.

         In support of their motion, the defendants provide the affidavit of Troy Ross, the Prison's Deputy Warden in charge of security, stating:

2. For many years, [DOC] policies concerning the use of force - including those governing the use of chemical agents and cell extractions - have been kept confidential from the prison population. These policies govern delicate circumstances where prisoners are noncompliant and/or pose a danger to themselves or those around them, and they are designed to promote the safety and security of prisoners and staff, and the maintenance of order in [DOC] facilities.
3. The confidentiality of these policies is essential to maintaining prison security, order, and discipline. If prisoners had access to these policies, they could forecast how corrections officers would respond in given circumstances, enabling them to frustrate legitimate penological efforts, and putting the lives of corrections officers at risk.
4. Training materials, including the cell extraction training unit at issue, are not released to prisoners for the same reason. The cell extraction training unit is based on the cell extraction policy, and it provides detailed descriptions of the circumstances justifying a cell extraction; the positioning and roles of corrections officers carrying out a cell extraction; and the steps officers take depending on the behavior of the subject prisoner. Prisoners could use any of this information to thwart a cell extraction, or to otherwise harm the corrections officers involved.
5. The confidentiality of the [2016 Sabre Manual] is important for similar reasons. The manual, which Sabre does not make public, sets forth instructions and guidelines on which [DOC] policy is based. For example, the manual describes how corrections officers employ chemical agents (e.g., minimum deployment distance, duration of spray, and positioning), and identifies the specifications of OC products used at the prison (e.g., capacity, propellant, and safety mechanisms). Any of this information could be used to undermine the efforts of ...

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