United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge.
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.
MOTION TO SEAL SECURITY CAMERAL FOOTAGE (DN 138)
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.”
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
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).
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).
MOTION TO SEAL PRISON RAPE ELIMINATION ACT INVESTIGATIVE
REPORT (DN 139)
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.
MOTION TO SEAL SECURED INSTITUTIONAL POLICY (DN 140)
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.”
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
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.
MOTION TO SEAL “OFFENDER SEPARATION ...