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Cooper v. Bower

United States District Court, W.D. Kentucky, Paducah

August 3, 2017



          Thomas B. Russell, Senior Judge.

         Plaintiff Michael Cooper filed this pro se 42 U.S.C. § 1983 prisoner civil rights action against various officials at Kentucky State Penitentiary (KSP). This matter is before the Court upon five motions by Defendants to seal exhibits (DNs 138, 139, 140, 141, & 142) they have filed in support of their motion for summary judgment (DN 137-3). The Court will consider each motion in turn.


         In their motion to seal this exhibit (docketed at ¶ 147), Defendants state that this exhibit contains video of the interior of KSP and poses a potential security risk by showing camera angles and blind spots. They also contend that it shows other inmates who “may have a privacy interest in having the video under seal.”

         The Court finds that this exhibit should be placed under seal. Although the Kentucky Open Records Act, related state laws, and opinions of the Kentucky Attorney General interpreting such are not controlling in regard to whether judicial records should be placed under seal in this federal action, they do offer helpful insight. For example, the Kentucky Attorney General has opined that the release of prison surveillance footage to the public could pose a threat to “the safety and security of the inmates, staff, and institution” because the footage may reveal the institution's “methods or practices in obtaining the video” and “show areas where the camera is capable of focusing and blind spots outside the camera's range.” See, e.g., Ky. Att'y Gen. Op. 07-ORD-168 (citing several previous opinions and denying a newspaper's open records request for prison surveillance video of a specific incident). The Court also notes that other courts have held that such footage may be properly placed under seal for security reasons. See, e.g., Castillon v. Corr. Corp. Am., No. 1:12-cv-00559-EJL-CWD, 2015 U.S. Dist. LEXIS 84998, at *6-7 (D.C. Idaho June 29, 2015); Pugh v. Terhune, No. CV F 01 5017 OWW LJO P, 2005 U.S. Dist. LEXIS 24593, at *3 (E.D. Cal. Oct. 6, 2005). Therefore, IT IS ORDERED that this motion to seal (DN 138) is GRANTED.

         However, because Defendants have filed the security camera footage as evidence in support of their motion for summary, Defendants must make the footage available for Plaintiff to view. Courts have long recognized the “dangers supposed to arise from the taking of ex parte evidence.” Patapsco Ins. Co. v. Southgate, 30 U.S. 604 (1831); see also Chaplin v. Kirwin, 1 U.S. 187 (1786). Courts have also regularly cautioned that when a decision-maker relies on ex parte evidence in reaching his conclusion, a violation of the other party's right to procedural due process may occur. See, e.g., Tenn. Secondary Sch. Athletic Ass'n v. Brentwood Acad., 551 U.S. 291 (2007); see also Kenny A. ex. rel. Winn v. Perdue, 547 F.3d 1319, 1326-27 (11th Cir. 2008) (noting that “the district judge failed to comprehend the due process implications of what he was doing” when he reached a decision based on ex parte evidence). It is beyond debate that a party retains “the right to know what information is being submitted to the decision-maker and the opportunity to challenge the reliability of the government's sources as well as provide contrary information.” United States v. Accetturo, 783 F.2d 382, 390 (3d Cir. 1986).

         These holdings make clear why one district court rejected a magistrate judge's report and recommendation when it granted summary judgment to the defendants without allowing the plaintiff, a state prisoner who had brought an action for excessive force under 42 U.S.C. § 1983, to view a “silent still-frame videotape” which contained “key evidence.” Evans v. Mallory, No. 08-12725, 2009 U.S. Dist. LEXIS 79069 (E.D. Mich. Sept. 2, 2009). Similarly, in Pugh v. Terhune, the court ordered defendants in a § 1983 action brought by a pro se prisoner to make a prison videotape which defendants had filed in support of their motion for summary judgment available to the plaintiff for viewing. 2005 U.S. Dist. LEXIS 24593; see also Wallace v. Walker, No. 5:13CV00068 JLH/JTR, 2014 U.S. Dist. LEXIS 3531 (E.D. Ark. 2014) (requiring defendants to allow § 1983 plaintiff to view prison surveillance video at least two weeks before his response to summary judgment would be due).


         In this motion to seal a Prison Rape Elimination Act (PREA) Investigative Report (docketed at ¶ 143), Defendants argue that the federal regulations allow individuals to make private reports to prison officials of an alleged PREA violation and that making this document publicly available “puts any confidential informant in harm's way.” Defendants' argument, however, fails because this document is already a matter of public record. Plaintiff filed this PREA investigative report with the Court when he filed his complaint (DN 1, Attach. 3). Moreover, a review of the report reveals that the “confidential informant” was Plaintiff himself, who not only requests that the report and related documents not be sealed, but initiated this very action based upon the allegations contained in the report. For these reasons, IT IS HEREBY ORDERED that Defendants' motion to seal this PREA Report and related documents (DN 139) is DENIED.


         In this motion, Defendants move to seal a KSP “secured institutional policy” (docketed at ¶ 144). Defendants argue that the release of this policy “would increase the risk of harm to correctional officers by revealing details of officers' duties, knowledge of which by inmates would enable them to disrupt the safety and security of the institution more effectively.”

         A thorough review of the policy leads this Court to conclude that it should indeed be sealed for the reasons set forth by Defendants. Accordingly, IT IS HEREBY ORDERED that this motion to seal (DN 140) is GRANTED.

         Based on these same security concerns, the Court will not compel Defendants to produce this document for Plaintiff's viewing at this time. However, in light of the above-cited case law, should the Court determine that a pertinent issue of Defendants' motion for summary judgment can only be decided by relying upon this evidence, it will revisit whether Plaintiff should be allowed to view the policy, or portions of it, at that time.


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