Adkins v. Neven et al

Filing 49

ORDER that 26 Motion to Seal is Granted. IT IS FURTHER ORDERED that 46 Motion to Extend Time is GRANTED nunc pro tunc. IT IS FURTHER ORDERED that 47 Motion for Leave to File is GRANTED. The Clerk of the court shall file 47 -1 and 47 -2 F irst Amended Petition. IT IS FURTHER ORDERED that 42 Motion to Amend is DENIED as Moot. IT IS FURTHER ORDERED that 18 Motion to Dismiss is DENIED without prejudice. Answer due within 45 days. Signed by Judge James C. Mahan on 9/9/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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FREDERICK W. ADKINS,
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Petitioner,

Case No. 2:13-cv-02170-JCM-PAL

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vs.

ORDER

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DWIGHT NEVEN, et al.,
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Respondents.
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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. Before the court are respondents’ motion to dismiss the petition (ECF

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No. 18), respondents’ motion to seal exhibits (ECF No. 26), petitioner’s motion to file a first

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amended petition (ECF No. 47), and related matters.

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I. Respondents’ Motion to Seal Exhibits

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Respondents have filed exhibits which comprise the state court record. (ECF Nos. 19-25).

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Additionally, respondents seek permission to file under seal petitioner’s presentence investigation

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report and psychological evaluations, which contain confidential information. (ECF No. 26). The

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presentence investigation report and psychological evaluations were submitted under seal for in

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camera review. (ECF No. 27).

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There is a strong presumption in favor of public access to judicial filings and documents.

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

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

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

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

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improper purposes.” Nixon v. Warner Comm., Inc., 435 U.S. at 598; Hagestad v. Tragesser, 49

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F.3d 1430, 1433-34 (9th Cir. 1995); Kamakana v. City and County of Honolulu, 447 F.3d 1172,

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1179 (9th Cir. 2006). Good cause, and in some circumstances, compelling reasons, must be shown

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to justify sealing the document. Kamakana v. City and County of Honolulu, 447 F.3d at 1179-89.

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A showing of good cause generally requires a specific description of the particular documents

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sought to be sealed and a showing that disclosure of such documents would work a “clearly defined

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and serious injury.” Pansy v. Borough of Stroudsburg, 23 F.3d 772, 776 (3rd Cir. 1994). Where

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good cause is shown for a protective order, the court must balance the potential harm to the moving

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party’s interests against the public’s right to access the court files. Kamakana v. City and County of

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Honolulu, 447 F.3d at 1179-89.

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The presentence investigation report and psychological evaluations that respondents seek to

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file under seal contain confidential information concerning petitioner, as defined under NRS

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176.156 and NRS 209.131. On balance, the potential harm to the parties’ interests outweighs the

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public’s right to access petitioner’s presentence investigation report and psychological evaluations.

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Respondents have made an adequate showing of compelling reasons to keep petitioner’s

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presentence investigation report and psychological evaluations sealed. Accordingly, the court grants

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respondents’ motion to seal these documents.

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II. Motion to Dismiss & Motion to File Amended Petition

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Respondents have filed a motion to dismiss the petition. (ECF No. 18). Plaintiff has filed a

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motion for leave to file an amended petition, and has submitted a proposed amended petition. (ECF

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No. 47).1 Rule 15(a)(2) provides that a party may amend its pleading with the court’s leave, and that

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“the court should freely give leave when justice so requires.” Good cause appearing and in the

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interests of justice, petitioner’s motion to amend is granted. Fed. R. Civ. P. 15(a)(2). This action

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shall proceed on the first amended petition. Respondents’ motion to dismiss is denied without

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Plaintiff’s earlier filed motion to amend (ECF No. 42), is denied as moot.
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prejudice. The court will set a deadline for a response to the amended petition, as set forth at the

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conclusion of this order.

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III. Conclusion

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IT IS THEREFORE ORDERED that respondents’ motion to seal (ECF No. 26) the

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presentence investigation report and psychological evaluations is GRANTED. The clerk of court

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shall keep the presentence investigation report and psychological evaluations (ECF No. 27) filed

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under seal.

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IT IS FURTHER ORDERED that petitioner’s motion for an extension of time to file a
proposed amended petition (ECF No. 46) is GRANTED nunc pro tunc.
IT IS FURTHER ORDERED that petitioner’s August 12, 2015 motion for leave to file a

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first amended petition (ECF No. 47) is GRANTED. The clerk of court SHALL FILE petitioner’s

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proposed first amended petition (ECF No. 47-1 & 47-2).

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IT IS FURTHER ORDERED that petitioner’s November 19, 2014 motion to amend (ECF
No. 42) is DENIED AS MOOT.

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IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 18) is

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DENIED WITHOUT PREJUDICE to renewing such arguments in response to the first amended

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petition.

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IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from entry

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of this order within which to answer, or otherwise respond to, the first amended petition. In their

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answer or other response, respondents shall address all claims presented in the first amended

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petition. Respondents shall raise all potential affirmative defenses in the initial responsive pleading,

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including lack of exhaustion and procedural default. Successive motions to dismiss will not be

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entertained.

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September 9, of September, 2015.
Dated this ______ day2015.

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UNITED STATES DISTRICT JUDGE
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