Hermansen v. Baker et al
Filing
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ORDER that Hermansen's motion for leave to file exhibits under seal (ECF No. 40 ) is granted in part and denied in part as follows: 1. Exhibits 21, 22, and 27 (ECF Nos. 42 , 42 -1, 42 -6) are considered properly filed under seal. 2. The Clerk of Court is instructed to UNSEAL Exhibits 23, 24, 25, and 26 (ECF Nos. 42 -2, 42 -3, 42 -4, 42 -5). Signed by Judge Miranda M. Du on 6/20/2019. (Copies have been distributed pursuant to the NEF - LH)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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BRANDEN J. HERMANSEN,
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Case No. 3:17-cv-00135-MMD-CBC
Petitioner,
ORDER
v.
RENEE BAKER, et al.,
Respondents.
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Before the Court is Petitioner Brandon J. Hermansen’s motion for leave to file
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exhibits under seal (ECF No. 40) in support of his response to Respondents’ motion to
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dismiss (ECF No. 38). Respondents have opposed sealing in part (ECF No. 46), and
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Hermansen has replied (ECF No. 47). For the reasons discussed below, Hermansen’s
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motion is granted in part and denied in part.
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Hermansen seeks leave to file under seal seven exhibits constituting his
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institutional records from the Nevada Department of Corrections (“NDOC”): Exhibit 21:
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Historical Bed Assignments Report (ECF No. 42); Exhibit 22: Case Note Printout Report
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(ECF No. 42-1); Exhibit 23: Law Library CD-ROM Case Law Print Report (ECF No. 42-
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2); Exhibit 24: Incoming/Outgoing Mail Log for Hermansen (ECF No. 42-3); Exhibit 25:
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Legal Copy Work Requests (ECF No. 42-4); Exhibit 26: Law Library Supply and Book
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Request Form (ECF No. 42-5); and Exhibit 27: NDOC I-File (ECF No. 42-6). Hermansen
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asserts that these records contain sensitive information not typically made available to
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the public, including Hermansen’s communications with the prison law library, disciplinary
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history, educational history, and other personal, private historical facts.
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Respondents counter that Hermansen has failed to demonstrate a compelling
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need to file under seal five of the seven documents: Exhibits 21, 23, 24, 25, 26.
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Respondents contend that the records present no safety or security concerns; thus, a
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need for protection is lacking. In particular, Respondents argue that Exhibit 21 “consists
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of dated material that presents no safety or security concerns.” (ECF No. 46 at 2.)
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However, with regard to Exhibits 22 and 27, Respondents acknowledge that the
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documents raise safety and security concerns.
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Given Respondents’ position, Hermansen concedes his request to seal Exhibits
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23, 24, 25, and 26. However, Hermansen reiterates his request to seal Exhibit 21, the
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Historical Bed Assignments Report (ECF No. 42), because the document indicates
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Hermansen’s current bed assignment of the date of the report, January 2, 2019.
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Hermansen notes that, due to the facts of his underlying case, he may be at risk of
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violence from prison gang members. Thus, making Hermansen’s current bed assignment
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public may present an unnecessary risk to his safety.
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Having reviewed and considered the matter in accordance with the Ninth Circuit’s
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directives set forth in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir.
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2006), and its progeny, the Court finds that a compelling need to protect Hermansen’s
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safety and security outweighs the public interest in open access to court records.
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Hermansen has met his burden of establishing compelling reasons for Exhibits 21, 22,
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and 27 to remain sealed. However, Exhibits 23, 24, 25, and 26 lack a need for protection.
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Accordingly, it is therefore ordered that Hermansen’s motion for leave to file
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exhibits under seal (ECF No. 40) is granted in part and denied in part as follows:
1. Exhibits 21, 22, and 27 (ECF Nos. 42, 42-1, 42-6) are considered properly filed
under seal.
2. The Clerk of Court is instructed to UNSEAL Exhibits 23, 24, 25, and 26 (ECF
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Nos. 42-2, 42-3, 42-4, 42-5).
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DATED THIS 20th day of June 2019.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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