United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 39]
JOHN
W. SEDWICK SENIOR JUDGE.
I.
MOTION PRESENTED
At
docket 39 plaintiff Estate of Joseph Murphy
(“Plaintiff”) asks the court to conduct an in
camera review of the personnel file of defendant Robert
Corcoran (“Corcoran”) and to compel Corcoran to
answer certain interrogatories. Corcoran responds at docket
44, and Plaintiff replies at docket 47. Oral argument was not
requested and would not be of assistance to the court.
II.
BACKGROUND
Joseph
Murphy was sent to the Lemon Creek Correctional Center
(“Lemon Creek”) from Bartlett Regional Hospital
on August 13, 2015, to be temporarily detained for alcohol
detoxification and suicide monitoring pursuant to AS
47.37.170. Early the next morning he complained to Lemon
Creek staff of chest pains and requested his medications.
Plaintiff alleges that Murphy made a third request for his
medications, this time to Corcoran. Plaintiff further alleges
that Corcoran said he did not care whether Murphy lived or
died. According to Plaintiff, a Lemon Creek video showed
Murphy collapsing in his cell twenty-six minutes after he
first requested his medications. Eventually staff noticed
Murphy on the floor and began unsuccessful attempts to revive
him. Murphy was declared dead about an hour after he made his
first request for medicine.
III.
DISCUSSION
A.
In Camera Review
Corcoran
argues that both his personnel file and his own knowledge of
what is in that file are protected from disclosure by Art. I,
§ 22, of the Alaska Constitution and AS 39.25.080.
Article 1, § 22 states: “The right of the people
to privacy is recognized and shall not be infringed. The
legislature shall implement this section.” So far as
public employee personnel files are concerned, the
legislature implemented the constitutional provision by
enacting AS 39.25.080. The statute indicates personnel files
are “confidential.” It also prohibits
“public inspection” of an employee's
personnel file. However, the statute says nothing about
access to a personnel file in the context of litigation
wherein the file's content may be relevant to resolution
of the lawsuit. The statute does not foreclose all access to
Corcoran's personnel file.
Corcoran
correctly recognizes that the right to privacy provided by
Art. I, § 22 is not absolute, citing Jones, et al.
v. Jennings.[1] There, plaintiff Jennings brought an
action against the Municipality of Anchorage and two
Anchorage Police officers pleading claims of assault and
battery, false imprisonment and violation of his
constitutional rights pursuant to 42 U.S.C. §§ 1983
and 1988. Jennings sought discovery on a variety of topics,
including citizen complaints against one of the officers
based on the use of excessive force. In addressing the
various issues raised by the discovery requests, the trial
court required the Municipality to provide the officer's
personnel file for in camera review by the court.
The Municipality submitted the documents for review, together
with “a summary of the municipality's grounds of
objection in producing the documents.”[2]
Corcoran
acknowledges that “some information contained in his
personnel records may be relevant to the constitutional claim
asserted against him.”[3] He agrees that use of a balancing
test by the trial court, which would provide for the
exclusion of prejudicial or irrelevant information, is
appropriate.[4] Given Corcoran's position on this
issue, it is surprising that in his reply, Plaintiff
expresses dissatisfaction. He faults Corcoran for not himself
first “determining what is reasonably discoverable
under the FRCP and relevant federal case law, and instead
punts the entire determination and responsibility to the
court.”[5] This court will follow the procedure
approved by the Alaska Supreme Court in Jennings.
Defendants shall provide the assigned judge with a complete
copy of Corcoran's personnel file, and Corcoran shall
submit a summary explaining precisely what grounds support
his objections to producing each of the documents or
categories of documents in the file. The summary must cite
case law supporting each objection or concede that there is
no case law supporting an objection. The file and the summary
shall be delivered to the assigned judge within 14 days from
the date of this order.
In his
briefing, Plaintiff urges the court to rule in the abstract
as to what categories of information which may be contained
in the personnel file will be subject to disclosure. The
court believes it better to make decisions only after the
specific materials are available for review. One general
point should be noted: Plaintiff's briefing indicates
that some material may be discoverable because it would be
needed to prove Corcoran's subjective awareness of the
risk of harm to Murphy. Plaintiff writes, “Compare
Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1069-71
(9th Cir. 2016) (holding that objective rather than
subjective standard applies to Fourteenth Amendment claims by
pretrial detainees with regard to defendant's awareness
of risk of harm) with, e.g., Conn v. City of Reno,
572 F.3d 1047, 1055 (9th Cir. 2009) (older deliberate
indifference standard requiring subjective awareness in
Fourteenth Amendment due process claims for failure to
provide medical care to pretrial
detainee).”[6] Plaintiff fails to note that the
Castro decision is an en banc decision. Its
effect is to replace the older subjective standard with the
objective standard. This court must follow Castro.
The objective standard it adopted will have some bearing on
the balance to be struck in deciding which portions of the
personnel file will be disclosed to Plaintiff.
B.
Request To Compel Interrogatory Answers
Plaintiff's
first interrogatory asks Corcoran about any disciplinary
action or investigation of Corcoran relating to Murphy's
death. In particular, it asks Corcoran for the dates when the
investigation or action was commenced, the date of its
conclusion, the names of those in charge of the investigation
or action, the location and date of any interview or hearing,
and the results. Corcoran responded by making an objection
based on Art. 1, § 22 and AS 39.25.080, and also
advising that he completed an incident report, was
interviewed by the Alaska State Troopers, and directing
Plaintiff to that material by reference to Bates numbered
pages. The court has already explained why the constitutional
provision and the statute do not bar all access to the
personnel file in the context of this litigation. However,
most of the details Plaintiff seeks would surely require
Corcoran to review what is in the personnel file and then
regurgitate what it says as his answer. Given that the court
is going to conduct an in camera review of the
personnel file at Plaintiff's request, Corcoran is not
required to respond further to the first interrogatory.
The
second interrogatory seeks similar information with respect
to any disciplinary action or investigation other than those
relating to Murphy's death. The same analysis applies to
the second interrogatory. ...