Bousley v. Neven et al

Filing 15

ORDER Granting 7 MOTION to Seal Presentence Report. Signed by Judge Gloria M. Navarro on 4/6/12. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTOINE BOUSLEY,

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Petitioner,
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vs.
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D.W. NEVEN, et al.,
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Respondents.
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____________________________________/

2:11-cv-01751-GMN-GWF
ORDER

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254,

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by a Nevada state prisoner.

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On March 14, 2012, respondents filed a motion to dismiss the petition. (ECF No. 4).

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Concurrent with the filing of the motion to dismiss, respondents brought a motion for leave file a

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document under seal. (ECF No. 7). Respondents seek to file under seal a presentence report

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containing confidential information regarding petitioner, and filed the presentence report under seal

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for in camera review. (ECF No. 8).
There is a strong presumption in favor of public access to judicial filings and documents. See

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Nixon v. Warner Communication, Inc., 435 U.S. 589, 597 (1978); see also Kamakana v. City and

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County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); Foltz v. State Farm Mut. Auto Ins. Co.,

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331 F.3d 1122, 1134 (9th Cir. 2003). The court has inherent power over its own records and files,

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and access may be denied where the court determines that the documents may be used for improper

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purposes.” Nixon v. Warner Comm., Inc., 435 U.S. at 598; Hagestad v. Tragesser, 49 F.3d 1430,

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1433-34 (9th Cir. 1995); Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir.

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2006).

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The Ninth Circuit distinguishes between dispositive and nondispositive pleadings and
motions in terms of the showing required to seal a document. For a document filed with a

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dispositive motion, “compelling reasons” must be shown to justify sealing the document. Kamakana

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v. City and County of Honolulu, 447 F.3d at 1179-89. In contrast, for documents filed with non-

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dispositive motions, a “good cause” showing will suffice to keep the records sealed. Id. This is

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based on the reasoning that the public has less need for access to records that are merely tangentially

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related to the underlying cause of action. Id. at 1179. A showing of good cause generally requires a

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specific description of the particular document(s) sought to be sealed and a showing that disclosure

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of such documents would work a “clearly defined and serious injury.” Pansy v. Borough of

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Stroudsburg, 23 F.3d 772, 776 (3rd Cir. 1994). Where good cause is shown for a protective order, the

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court must balance the potential harm to the moving party’s interests against the public’s right to

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access the court files. Kamakana v. City and County of Honolulu, 447 F.3d at 1179-89.
The presentence report of petitioner was submitted in support of respondents’ motion to

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dismiss. (ECF No. 8). The motion to dismiss is a dispositive motion and therefore respondents must

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show “compelling reasons” to keep the document sealed. Kamakana v. City and County of

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Honolulu, 447 F.3d at 1179-89. In the instant case, the presentence report contains confidential

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information concerning petitioner, as defined under NRS 176.156. On balance, the potential harm to

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both respondents’ and petitioner’s interests outweighs the public’s right to access the presentence

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report. Respondents have made an adequate showing of compelling reasons to keep the presentence

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report of petitioner sealed. Accordingly, the Court grants respondents’ motion to seal petitioner’s

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presentence report. The presentence report, which was submitted for in camera review at ECF No.

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8, will remain sealed.

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IT IS THEREFORE ORDERED that respondents’ motion to seal petitioner’s presentence

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report (ECF No. 7) is GRANTED. The Clerk of Court shall keep petitioner’s presentence report

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(ECF No. 8) under seal.

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Dated this 6th day of April, 2012.

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Gloria M. Navarro
United States District Judge

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