Nelson v. Warden Filson et al

Filing 31

ORDER that Respondents' Motion to Dismiss ECF No. 24 is DENIED without prejudice; Respondents' Motion for Leave to File Exhibit Under Seal ECF No. 29 is GRANTED; exhibit has already been filed under seal ECF No. 30 ,no further action is necessary in this regard. Signed by Judge Robert C. Jones on 4/16/2019. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHARLES NELSON,

Case No. 3:18-cv-00029-RCJ-CBC

Petitioner,
ORDER DENYING MOTION TO
DISMISS WITHOUT PREJUDICE
AND GRANTING MOTION FOR LEAVE
TO FILE EXHIBIT UNDER SEAL

v.
WILLIAM GITTERE, et al.,
Respondents.

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In this habeas corpus action, on March 12, 2019, the Court appointed new

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counsel to represent the petitioner, Charles Nelson (ECF No. 22). In the March 12

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order, the Court also set a new schedule for further proceedings in the action. One of

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the scheduling provisions in that order set a deadline – July 10, 2019 – for Nelson to file

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a second amended habeas petition, or a notice stating that further amendment of his

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petition is not necessary. See Order entered March 12, 2019 (ECF No. 22), p. 2. The

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March 12 order went on to set a schedule for Respondents to then respond to the

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operative petition, and a schedule for further proceedings beyond that. See id.

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On April 12, 2019, Respondents filed a motion to dismiss (ECF No. 24) and
exhibits (ECF Nos. 25, 26, 27, 28).

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As the Court has granted leave for Nelson to file a second amended petition, the

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motion to dismiss his first amended petition is premature. Therefore, the Court will deny

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Respondents’ April 12 motion to dismiss, without prejudice to Respondents filing a

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motion to dismiss, on the same or different grounds, consistent with the schedule set

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forth in the March 12 order.

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On April 12, 2019, Respondents also filed a motion for leave of court to file an

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exhibit under seal (ECF No. 29). In that motion, Respondents request leave of court to

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file under seal a copy of Nelson’s presentence investigation report (Exhibit 131. There is
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a strong presumption in favor of public access to judicial filings and documents. See Nixon

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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.

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Auto Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003). However, the Court has inherent

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power over its own records and files, and access may be denied where the Court

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determines that the documents may be used for “improper purposes.” See Nixon, 435

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U.S. at 598; Kamakana, 447 F.3d at 1179; Hagestad v. Tragesser, 49 F.3d 1430, 1433-

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34 (9th Cir. 1995). Under Nevada law, a presentence investigation report is confidential,

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and is not to be made part of a public record. See NRS 176.156(5). The presentence

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investigation report contains sensitive confidential information concerning Nelson and

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others, and Respondents inform the court that disclosure of the presentence investigation

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report could cause prison security threats. In light of the state law, and in light of

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Respondents’ concerns regarding the confidentiality of this material, the Court finds that

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there is good cause for the exhibit in question to be filed under seal.

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IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No.
24) is DENIED without prejudice.

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IT IS FURTHER ORDERED that Respondents’ Motion for Leave to File Exhibit

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Under Seal (ECF No. 29) is GRANTED. Respondents are granted leave of court to file

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Exhibit 131 under seal. As that exhibit has already been filed under seal (ECF No. 30),

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no further action is necessary in this regard.

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16th day of April, 2019.
DATED THIS ___ day of ____________________, 2019.

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ROBERT C. JONES,
UNITED STATES DISTRICT JUDGE

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