UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRIAN N. BAKER, : CIVIL NO: 4:CV-05-00281

Plaintiff :

: (Judge Jones)

v. :

: (Magistrate Judge Smyser)

JEFFREY A. BEARD, :

DONALD KELCHNER, :

A. NEWTON, :

ROBERT MARSH, JR., :

BLAINE STEIGERWALT, :

RICHARD SOUTHERS, :

KENNETH D. KYLER, :

FREDERICK WAWROSE, : 

J.L. GRACE, :

A.S. WILLIAMSON, and :

R.M. LAWLER, :

Defendants :

ORDER

On April 29, 2005, defendant Newton filed a motion to

dismiss or for summary judgment, a statement of undisputed

material facts, and a brief in support of his motion. 

Also on April 29, 2005, defendant Newton filed a motion

to submit an exhibit appendix to his motion to dismiss or for

summary judgment under seal. In his motion to dismiss or for

summary judgment, defendant Newton refers to various portions

of the plaintiff’s prison mental health records. He asserts

Case 4:05-cv-00281-JEJ Document 51 Filed 07/14/05 Page 1 of 7
1. Defendant Newton’s exhibit appendix is currently docketed as

a “proposed sealed document.” See Doc. 32. We note that Doc. 32

does not contain pages 64-67 but does contain page 69. 

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that those records contain sensitive information concerning the

plaintiff’s mental health status and treatment. In particular,

he asserts that pages 64-67 and 69 are confidential and should

not be disclosed to the plaintiff. Defendant Newton states

that he addressed the issue of the confidentiality of the

plaintiff’s records by filing an exhibit appendix including

pages 64-67 & 69 in camera for the court’s review. 

Defendant Newton further states that, with the

exception of pages 64-67 & 69, the plaintiff is entitled to

copies of the exhibits he submitted. However, he continues

that even the documents that the plaintiff is entitled to

receive copies of are confidential and should not be available

for public inspection through the court’s Electronic Case

Filing System. Defendant Newton is seeking permission to file

his exhibit appendix under seal.1

We will grant defendant Newton’s motion to file his

exhibit appendix under seal. 

There remains, however, the question of the propriety

of defendant Newton submitting pages 64-67 & 69 to the court in

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camera. It is not appropriate for the court to consider in

connection with the defendant’s motion to dismiss or for

summary judgment documents which have not been served on the

plaintiff.

With limited exceptions, a court may not decide the

merits of a case based on evidence kept secret from one of the

parties. Pack v. Beyer, 157 F.R.D. 219, 223 (D.N.J. 1993)(“Our

adversarial legal system generally does not ordinarily tolerate

ex parte determinations on the merits of a civil case.”);

Association for Reduction of Violence v. Hall, 734 F.2d 63 (1st

Cir. 1984)(reversing and remanding case to the district court

which had granted partial summary judgment to defendants on the

basis of privileged documents and stating that if the

defendants renew their motion for summary judgment the district

court will have to rule on the motion without relying on

privileged materials); Vining v. Runyon, 99 F.3d 1056, 1057

(11th Cir. 1996)(“Although a judge freely may use in camera, ex

parte examination of evidence to prevent the discovery or use

of evidence, consideration of in camera submissions to

determine the merits of litigation is allowable only when the

submissions involve compelling national security concerns or

the statute granting the cause of action specifically provides

for in camera resolution of the dispute.”). The court in

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Abourezk v. Reagan, 785 F.2d 1043, 1060-61 (D.C. Cir. 1986),

aff’d, 484 U.S. 1 (1987), summarized the general rule and the

exceptions to that rule as follows:

It is a hallmark of our adversary system

that we safeguard party access to the evidence

tendered in support of a requested court

judgment. The openness of judicial proceedings

serves to preserve both the appearance and the

reality of fairness in the adjudications of

United States courts. It is therefore the

firmly held main rule that a court may not

dispose of the merits of a case on the basis of

ex parte, in camera submissions. See In re

Application of Eisenberg, 654 F.2d 1107, 1112

(5th Cir.1981).

Exceptions to the main rule are both few

and tightly contained. Most notably,

inspection of materials by a judge isolated in

chambers may occur when a party seeks to

prevent use of the materials in the litigation. 

When one side, seeking to block consideration

of relevant matter, asserts an evidentiary

privilege, the court may inspect the evidence

in camera and alone for the limited purpose of

determining whether the asserted privilege is

genuinely applicable. See id. If the court

finds that the claimed privilege does not

apply, then the other side must be given access

to the information; if the court's finding is

that the privilege does apply, then the court

may not rely upon the information in reaching

its judgment. See Ellsberg v. Mitchell, 709

F.2d 51, 64 (D.C.Cir. 1983), cert. denied sub

nom. Russo v. Mitchell, 465 U.S. 1038, 104

S.Ct. 1316, 79 L.Ed.2d 712 (1984). In either

case, no party will be faced--as were the

plaintiffs in this case--with a decision

against him based on evidence he was never

permitted to see and to rebut.

Only in the most extraordinary

circumstances does our precedent countenance

court reliance upon ex parte evidence to decide

the merits of a dispute. Our one case in

point, Molerio v. Federal Bureau of

Investigation, 749 F.2d 815 (D.C.Cir. 1984),

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involved the state secrets privilege, a

privilege not invoked in this case. The

government pressed acute national security

concerns in Molerio, and we recognized a large

risk that an unjust result would eventuate if

the case proceeded without the privileged

material. See id. at 825. While we allowed

court recourse to the confidential information

in Molerio, we based that allowance upon proper

invocation of the privilege; a demonstration of

compelling national security concerns; and

public disclosure by the government, prior to

any in camera examination, of as much of the

material as it could divulge without

compromising the privilege. In addition, the

plaintiff in Molerio had been accorded

considerable discovery of non-privileged

materials. See id. at 819; see also Ellsberg,

709 F.2d at 63-64.

We mention finally a third class of cases

in which in camera inspection may occur:

exceptions to the main rule specified by

statute. The prime current example is the

Freedom of Information Act, 5 U.S.C. s 552

(1982). Even in administering such

legislation, however, we have been vigilant to

confine to a narrow path submissions not in

accord with our general mode of open

proceedings. See, e.g., Vaughn v. Rosen, 484

F.2d 820, 827-28 (D.C.Cir. 1973), cert. denied,

415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873

(1974)(requiring the government to create a

public index listing privileged documents and

providing explanations of the claim of

privilege).

The documents submitted to the court in camera in this

case obviously do not impact national security. Defendant

Newton has not shown any extraordinary circumstance which would

justify the court’s reliance upon the in camera documents as a

basis for an adjudication against the plaintiff, who has not

had the opportunity to see the documents or to attempt to

Case 4:05-cv-00281-JEJ Document 51 Filed 07/14/05 Page 5 of 7
2. Defendant Newton’s proposed exhibit appendix - doc. 32 -

contains a certificate of service indicating that is was served

on the plaintiff. As noted previously doc. 32 does contain page

69. The plaintiff states in his brief in opposition to defendant

Newton’s motion to dismiss or for summary judgment that he does

not have pages 86-106 of the exhibits. See Doc. 43. It is not

clear if the plaintiff is asserting that these are the only pages

he does not have. 

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refute any damaging information in those documents. Thus, when

addressing defendant Newton’s motion to dismiss or for summary

judgment we will not consider the documents submitted in

camera.

It is not clear which, if any, of the pages of his

exhibit appendix defendant Newton has served on the plaintiff.2

Defendant Newton will be granted permission to file his exhibit

appendix under seal and when he does so he shall file with it a

certificate of service specifically indicating the date the

plaintiff was served with the appendix. 

Further, since the court will not consider the

documents submitted in camera when addressing the merits of

defendant Newton’s motion to dismiss or for summary judgment,

we will provide defendant Newton with an opportunity to decide

whether or not to serve those documents on the plaintiff. If

defendant Newton decides to maintain his position that the

plaintiff is not entitled to see those documents, defendant

Newton shall file redacted copies of his motion, brief,

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statement of facts and affidavit that eliminate any references

to those documents and any arguments regarding inferences that

the court should draw from those documents. 

IT IS ORDERED that defendant Newton’s motion (doc. 30)

to file his exhibit appendix under seal is GRANTED. Within

five days of the date of this Order defendant Newton shall file

his exhibit appendix under seal. Also within five days of the

date of this Order defendant Newton shall file a certificate of

service specifically indicating the date the plaintiff was

served with the appendix, and, if necessary, redacted copies of

his motion to dismiss or for summary judgment, statement of

material facts, brief and affidavit.

/s/ J. Andrew Smyser 

J. Andrew Smyser

Magistrate Judge

DATED: July 14, 2005.

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