Kevin Fernandez Vs. State of Nevada, et al.

Filing 592

ORDERED : 1- P's 553 Motion to file in camera is DENIED; 2 - P's 554 Motion re subpoenas is DENIED AS MOOT; 3 - Ds' 557 Motion to enlarge time is DENIED AS MOOT; 4 - P's 561 Motion re subpoenas is DENIED AS MOO T; 5 - P's 565 Motion for leave to file is DENIED AS MOOT; 6 - P's 566 Motion for judicial intervention is DENIED WITHOUT PREJUDICE; 7 - P's 569 Motion to enlarge time is DENIED AS MOOT; 8 - P's 571 Motion to supplement is GRANTED; 9 - P's 575 Motion re exhibits is DENIED with respect to Exhibits A, B, C, E, and F, and GRANTED as to Exhibit D; 10 - P's 578 for reconsideration is DENIED; 11 - P's 581 Motion to extend ti me is GRANTED nunc pro tunc, and P's 579 Motion to extend time is DENIED AS MOOT; 12 - P's 580 Motion re copy limit is DENIED; 13 - P's 582 Motion to enlarge time is DENIED AS MOOT; 14 - P's 585 Motion to file in camera is GRANTED as to Exhibits B, D, E, J, and K, and is otherwise DENIED. Signed by Magistrate Judge William G. Cobb on 2/9/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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KEVIN FERNANDEZ,

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Before the court are various motions filed by the parties in this action.

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Plaintiff,
vs.
STATE OF NEVADA, et. al.

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Defendants.

3:06-cv-00628-LRH (WGC)
ORDER

(1) Doc. # 553

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Plaintiff has filed a motion to file in camera his submission of exhibits in support of his

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Motion for an Evidentiary Hearing and Limited Discovery (Doc. # 552), at a later date. (Doc.

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# 553.)

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If and when Plaintiff seeks to file a specific document under seal or in camera, he may

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file a corresponding motion. He may not seek such relief in advance. Accordingly, his request

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(Doc. # 553) is DENIED.

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(2) Doc. # 554

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Plaintiff has filed a motion for the court to issue and serve subpoenas. (Doc. # 554.) He

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wants to subpoena documents he seeks to use at his evidentiary hearing in support of his

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motion to compel enforcement of the settlement agreement. (Id.) Specifically, he seeks

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documentation from his attorney’s file. (Id.) Plaintiff’s attorney, Jeffrey Blanck, has already

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been ordered to provide his file materials to Plaintiff, and Plaintiff admits he received two (2)

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boxes of documents from Mr. Blanck. (Doc. # 561, Doc. # 578 at 2.) Therefore, Doc. # 554 is

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DENIED AS MOOT.

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(3) Doc. # 557

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Defendants have filed a motion for enlargement of time to respond to Plaintiff’s motion

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for an evidentiary hearing and limited discovery (Doc. # 552). (Doc. # 557.) They seek an

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extension to respond for fourteen (14) days after Plaintiff files his motion to enforce the

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settlement agreement. (Id.)

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Plaintiff filed his motion to enforce the settlement agreement on September 22, 2011.

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(Doc. # 564.) Defendants have not responded to Doc. # 552 or Doc. # 564. Defendants have,

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however, filed their own motion to enforce the settlement agreement (Doc. # 577.) In addition,

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the court has concurrently issued a Report & Recommendation that Plaintiff’s motion for an

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evidentiary hearing and limited discovery be denied. Therefore, Defendants’ request is

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DENIED AS MOOT.

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(4) Doc. # 561

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Plaintiff has filed a motion for the court to issue and serve subpoenas related to two (2)

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boxes of legal documents that Plaintiff’s counsel, Jeffrey Blanck, sent to the prison but he did

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not receive. (Doc. # 561.) Plaintiff admits that he has received these two (2) boxes of

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documents. (Doc. # 578 at 2.) Therefore, Doc. # 561 is DENIED AS MOOT.

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(5) Doc. # 565

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Plaintiff has filed a motion for leave to file exhibits in support of his memorandum in

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support of his motion to compel enforcement of the settlement agreement, after limited

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discovery is conducted and after the court rule’s on his motion to enjoin Defendants from

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transferring Plaintiff to any other prison. (Doc. # 565.)

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The court has concurrently recommended denial of Plaintiff’s request to conduct limited

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discovery. Moreover, his request is predicated on gaining possession of his legal files, which

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Plaintiff has already indicated he has. Accordingly, this motion (Doc. # 565) is DENIED AS

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MOOT.

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(6) Doc. # 566

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Plaintiff has filed an emergency motion for judicial intervention. (Doc. # 566.) Plaintiff

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summarily states that if he is transferred, he will be murdered, and therefore, Defendants

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should be precluded from transferring him to any other institution. (Id.) Plaintiff has not

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properly sought injunctive relief. As he is well aware by this point in the proceedings, a motion

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for injunctive relief requires an affirmative showing of a likelihood of success on the merits,

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irreparably injury, that the balance of hardships weighs in his favor, and that the public interest

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favors injunctive relief. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20

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(2008). Because Plaintiff has not appropriately sought the requested relief, this motion should

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be DENIED WITHOUT PREJUDICE.

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(7) Doc. # 569

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Plaintiff has filed a motion for enlargement of time to file his proposed findings of fact

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and conclusions of law and pretrial brief. (Doc. # 569.) The court has vacated the trial date in

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this matter, and concurrently with this order, there is a recommendation that the settlement

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agreement be enforced against Plaintiff. Accordingly, Plaintiff’s motion (Doc. # 569) should

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be DENIED AS MOOT.

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(8) Doc. # 571

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Plaintiff has filed a motion to supplement his Motion to Compel Enforcement of the

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Settlement Agreement. (Doc. # 571.) Good cause appearing, the motion is GRANTED.

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(9) Doc. # 575

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Plaintiff has filed a motion to file the exhibits in support of his motion for an evidentiary

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hearing and limited discovery in camera. (Doc. # 575.) Plaintiff asserts that the documents

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contain attorney-client privileged information, that should be kept out of the public eye, yet he

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states that he is providing Defendants with a copy of the information so they will not be

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prejudiced. (Id.)

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The court has reviewed the documents which Plaintiff seeks to file in camera.

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Exhibit A is a February 3, 2011 letter from Alicia Lerud (Deputy Attorney General) to

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Plaintiff regarding a draft of the settlement agreement. A copy of this exhibit has already been

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lodged in the public domain at Doc. # 577-2 Ex. A.

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Plaintiff references an Exhibit B but says it is in the possession of attorney Jeffrey
Blanck. (Doc. # 576-1 at 11.)
Exhibit C is another draft of the settlement agreement which has been produced by
Defendants at Doc. # 577-2 Ex. J.

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Exhibit D is a letter from Plaintiff to attorney Jeffrey Blanck and notes from a March 31,

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2011 telephone conversation with Mr. Blanck’s office. It also contains a March 31, 2011 letter

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from Plaintiff to Jeffrey Blanck.

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Exhibit E is a grievance regarding Plaintiff’s transfer to ESP.

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Exhibit F is a July 19, 2011 letter from the Office of the Attorney General to Plaintiff.

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This letter has been produced by Defendants at Doc. # 577-2 Ex. M. This exhibit also contains

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an April 26, 2011 email from Alicia Lerud to Mr. Blanck’s office which has been produced by

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Defendants at Doc. # 577-2 Ex. K.

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While Plaintiff seeks to file these exhibits in camera, the court cannot discern any

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practical difference between the request to file the exhibit in camera as compared to filing it

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under seal, and the objective of the motion is to keep the exhibit from public view. Therefore,

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the court construes Plaintiff’s request as one to file these exhibits under seal.

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“Historically, courts have recognized a general right to inspect and copy public records

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and documents, including judicial records and documents.” See Kamakana v. City and County

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of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal quotation marks and citation

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omitted). Documents that have been traditionally kept secret, including grand jury transcripts

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and warrant materials in a pre-indictment investigation, come within an exception to the

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general right of public access. See id. Otherwise, “a strong presumption in favor of access is the

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starting point.” Id. (internal quotation marks and citation omitted).

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A motion to seal documents that are part of the judicial record, or filed in connection

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with a dispositive motion, as they are here, must meet the “compelling reasons” standard

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outlined in Kamakana. Thus, a party seeking to seal judicial records must show that

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“compelling reasons supported by specific factual findings...outweigh the general history of

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access and the public policies favoring disclosure.” Kamakana, 447 F.3d at 1178-79.

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Plaintiff’s motion for an evidentiary hearing is connected with his motion to enforce the

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settlement agreement, which if granted, is case dispositive. Therefore, Plaintiff was required

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to meet the “compelling needs” standard in Kamakana.

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The motion is DENIED with respect to Exhibits A, C, and F, which are already in the

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public record. The motion is also DENIED with respect to Exhibit B as Plaintiff did not file

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an actual exhibit. Exhibit D consists of confidential attorney-client communications, and

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although Plaintiff may have waived the privilege by providing these documents to Defendants,

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they do contain attorney-client communications and the court will GRANT Plaintiff’s request

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to seal Exhibit D. Exhibit E consists of Plaintiff’s grievance related to his transfer to ESP.

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His transfer to ESP is well documented in various motions filed by Plaintiff and Defendants,

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and the grievance contains no other confidential information. Accordingly, the request to seal

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Exhibit E is DENIED.

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(10) Doc. # 578

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Plaintiff has filed a motion to correct Doc. # 574, and for reconsideration of Doc. # 574.

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(Doc. # 578.) Specifically, Plaintiff seeks an order correcting or reconsidering the order directed

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to attorney Jeffrey Blanck to mail Plaintiff’s legal files to him. He seems to argue that Mr.

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Blanck has not sent him the entirety of his legal file.

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At the status conference on October 26, 2011, the court ordered Mr. Blanck to return

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Plaintiff’s file to him. (Doc. # 574.) The Court was subsequently advised by Mr. Blanck that the

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file had been sent to Plaintiff at the North Dakota State Prison, where Plaintiff had previously

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been located. In light of this statement, the court ordered that Mr. Blanck was not required

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to take any further action.

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The court ordered Mr. Blanck to send Plaintiff his file, which Mr. Blanck, as an officer

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of the court, represented he did. The court cannot require any further action on behalf of Mr.

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Blanck as he represents that he did in fact send the file to Plaintiff.

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Accordingly, Plaintiff’s motion (Doc. # 578) is DENIED.
(11) Doc. # 579 and Doc. # 581

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Plaintiff has filed two motions for an extension of time to file his response to

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Defendants’ Motion to Enforce the Settlement Agreement. (Doc. # 579 and Doc. # 581.) In the

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second request, Plaintiff sought up to and including January 31, 2012, to file his response.

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(Doc. # 581.) Plaintiff did file his response on January 30, 2011. (Doc. # 584.) Good cause

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appearing, Plaintiff’s motion (Doc. # 581) is GRANTED, nunc pro tunc. Plaintiff’s first

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request (Doc. # 579) is DENIED AS MOOT.

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(12) Doc. # 580

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Plaintiff has filed a motion to increase his copy limit. (Doc. # 580.) He seeks an increase
of his copy work limit up to $900. (Id.)

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On August 25, 2010, this court entered an order increasing Plaintiff’s copy fee limit by

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an additional $150.00 for a total of $750.00. (Doc. # 480.) The order specifically stated,

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“[t]his limit of $750.00 shall not change between now and the conclusion of this

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case, even if Plaintiff makes payments on previous copy charges.” (Doc. # 480.)

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Plaintiff’s current motion was filed on December 21, 2011, and he asserts that at that

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point his balance was at $716.50. He asserts that he needed to make copies of his response to

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Defendants’ motion to enforce the settlement agreement, which would cost him $10.00. (Id.)

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This would have brought his limit to $726.50, leaving him a little under $25.00. (Id.) Plaintiff

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says he will need another $50.00 to copy the exhibits for his motion, and another $50.00 to

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$100.00 in copies for his appeal.

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There is no justification set forth for another $50.00 for exhibits for his motion,

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especially when Plaintiff has already filed exhibits to his motion. At .10 per page, this would be

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500 pages of exhibits. The court is simply not presented with a justification for what it deems

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an excessive amount of exhibits for this motion. Moreover, to the extent Plaintiff needs to

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exceed his copy limit with respect to his appeal, he can file an appropriate motion at that time.

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Plaintiff’s motion (Doc. # 580) is DENIED.

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(13) Doc. # 582

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Doc. # 582 is titled a Motion for Court Intervention, but is yet another request to enlarge

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the time for Plaintiff to respond to Defendants’ Motion to Enforce the Settlement Agreement.

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(Doc. # 582.) In light of the court’s ruling above, this motion is DENIED AS MOOT.

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(14) Doc. # 585

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Plaintiff has filed a motion for leave to file his response to Defendants’ motion to enforce

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the settlement agreement in camera. (Doc. # 585.) Plaintiff asserts that his response contains

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confidential information which could put his safety at risk. (Id.)

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As set forth above, in connection with a dispositive motion, such as a motion to enforce

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a settlement agreement, Plaintiff must show compelling reasons for sealing his opposition. The

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court has reviewed the opposition brief, and finds that it does not contain any information that

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has not already been disclosed in the public record in Defendants’ motion and other filings

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made by both parties in this case. Moreover, Plaintiff has not pointed out any specific

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information contained within his opposition that is confidential. Therefore, Plaintiff’s blanket

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request to seal his opposition is denied.

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The opposition does contain exhibits which contain confidential information which
should be kept under seal.

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Exhibit B (Doc. # 587 at 33-34) contains attorney-client communications

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(notwithstanding a possible waiver due to disclosure to defense counsel), and should be kept

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under seal.

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Exhibit D (Doc. # 587 at 43-50) contains information regarding Plaintiff’s classification

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status at the North Dakota prison which may affect his safety and security. Therefore, it should

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remain under seal.

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Exhibit E (Doc. # 587 at 51-55) is a classification report from the prison in North Dakota
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which contains confidential information regarding Plaintiff , which should be sealed.

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Exhibit J (Doc. # 587 at 75-77), is an affidavit of Plaintiff’s mother, Dorothy Bedell,

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which contains information related to Plaintiff’s safety and security, and should be kept under

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seal.

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The court does note that Exhibit K (Doc. # 587 at 78-80) to the opposition contains
attorney-client communications, and should remain under seal.
Accordingly, Plaintiff’s motion is GRANTED as to Exhibits B, D, E, J, and K, and

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is otherwise DENIED.

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IT IS SO ORDERED.

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DATED: February 9, 2012
_____________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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