Brown v. Breitenbach

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 MARLON LORENZO BROWN, Case No. 3:23-cv-00148-RCJ-CLB 5 Petitioner, v. 7 NETHANJAH BREITENBACH, et al., 8 Respondents. 9

10 11 In this habeas corpus action, brought pro se by Marlon Lorenzo Brown, on 12 September 18, 2023, the respondents filed a motion to dismiss (ECF No. 23), along with 13 several exhibits (ECF Nos. 24, 25, 26, 27, 28, 29, 30, 31, 32, 34). Respondents filed 14 three of those exhibits—Exhibits 256, 258 and 261—under seal (ECF No. 34), and they 15 filed a motion for leave of court to do so (ECF No. 33). 16 Respondents’ Exhibits 256, 258 and 261 include a total of 3,983 pages of 17 material. Those exhibits are three documents, and attachments to them, filed in Brown’s 18 state court proceedings: a motion to disqualify a judge, a supplemental memorandum of 19 points and authorities in support of a post-conviction petition for writ of habeas corpus, 20 and a motion to clarify a minute order reversing a judge’s recusal. There is no indication 21 that any of those documents, or any part of any of those documents, was filed under 22 seal in state court. Nevertheless, Respondents request that all the material in Exhibits 23 256, 258 and 261 be sealed because Brown’s presentence investigation report dated 24 April 11, 2018, “is one exhibit attached to the pleadings that [make] up Exhibits 256, 25 258, and 261.” ECF No. 33 at 1. Respondents state that the presentence investigation 26 report contains confidential information, and they point out that under Nevada law the 27 contents of presentence investigation reports are not to be made a part of any public 1 to seal all 3,983 pages of Exhibits 256, 258 and 261. Brown filed a response to 2 Respondents’ motion, stating: “Petitioner does not oppose Respondents' motion; 3 however, Petitioner would like a copy of the documents to be fled under seal, served on 4 him, for his records as he does not have a copy of the documents.” ECF No. 36 at 2. 5 While there is a strong presumption in favor of public access to judicial filings, 6 and while courts prefer that the public retain access them, see Nixon v. Warner 7 Communications, Inc., 435 U.S. 589, 597 (1978), a court may seal its records if a party 8 demonstrates “compelling reasons” to do so. See Kamakana v. City & Cty. of Honolulu, 9 447 F.3d 1172, 1178–79 (9th Cir. 2006). “Compelling reasons” exist where the records 10 could be used for improper purposes. Kamakana, 447 F.3d at 1179 (citing Nixon, 435 11 U.S. at 598). Under Nevada law, presentence investigation reports are confidential, and 12 are not to be made part of a public record. See NRS 176.156(5). 13 Brown’s presentence investigation report and references to it make up only a 14 small part of Exhibits 256, 258 and 261. Respondents’ motion to seal all of Exhibits 256, 15 258 and 261 on account of the confidentiality of the presentence investigation report is 16 overbroad. There is no showing of any compelling reason to seal the material in those 17 exhibits other than the presentence investigation report and references to it. 18 Therefore, the Court will grant Respondents’ motion in part and deny it in part. 19 The Court will grant leave for Exhibits 256, 258 and 261 to remain under seal. However, 20 Respondents will be required to file three additional exhibits, not under seal, with only 21 the presentence investigation report and references to it redacted from those exhibits. 22 Respondents will also be required to file a notice regarding those three new exhibits, 23 identifying the locations within them where the redactions appear. 24 Regarding Brown’s request to be provided copies of the exhibits filed under seal, 25 Respondents filed a response, stating that they oppose his request because they are 26 concerned disclosure of the confidential information contained in the presentence 27 investigation report could violate Nevada Department of Corrections regulations that 1 the well-being of the prisoner who is the subject of the documents, or others, or that 2 might endanger the security of the prison, and regulations that specifically prohibit 3 production of presentence investigation reports to prisoners (ECF No. 38). 4 Respondents’ concerns are well taken. Here too, though, the only information in 5 Exhibits 256, 258 and 261 that Respondents express concern about is the presentence 6 investigation report and references to it. Therefore, the Court will require Respondents 7 to serve on Brown copies of only the redacted new exhibits to be filed pursuant to this 8 order. 9 Brown filed a response to the motion to dismiss on September 25, 2023 (ECF 10 Nos. 35, 37). Respondents filed a reply to Brown’s response on October 23, 2023 (ECF 11 No. 39). On October 26, 2023, Brown filed a motion requesting leave to file a sur-reply 12 regarding the motion to dismiss and requesting that the Court strike Respondents’ reply 13 in support of the motion to dismiss (ECF Nos. 40, 41). His proposed sur-reply is 14 attached to Brown’s motions as Exhibit A. The parties have briefed Brown’s motions 15 (ECF Nos. 42, 43). 16 Brown argues, in support of his motion to strike Respondents’ reply in support of 17 their motion to dismiss, that the reply was not filed in a timely manner. Brown is 18 mistaken. Respondents filed the reply 29 days after Brown filed his opposition to the 19 motion to dismiss. See ECF Nos. 35, 37 (response to motion to dismiss, filed 20 September 25, 2023), and ECF No. 39 (reply in support of motion to dismiss, filed 21 October 23, 2023). The scheduling order (ECF No. 7) gave Respondents 30 days to file 22 the reply. Brown’s motion to strike will be denied. 23 Cognizant that Brown is proceeding pro se, the Court will grant him leave to file 24 his sur-reply in opposition to the motion to dismiss. The sur-reply is on file, attached as 25 Exhibit A to ECF No. 40; Brown need not re-file the sur-reply. The Court will grant 26 Respondents an opportunity to respond to Brown’s sur-reply if they wish to do so. 27 1 IT IS THEREFORE ORDERED that Respondents’ Motion for Leave to File 2 || Exhibits in Camera and Under Seal (ECF No. 33) is GRANTED IN PART AND DENIED 3 || IN PART. Respondents’ Exhibits 256, 258 and 261 will remain under seal. Respondents 4 || will have 30 days from the date of this order to file three additional exhibits containing 5 || the documents in Exhibits 256, 258 and 261, not under seal, with only the presentence 6 || investigation report and references to it redacted from those exhibits. Respondents will 7 || then have 10 days, following the filing of the three additional exhibits, to file a notice 8 || regarding those exhibits, stating the pages of the exhibits (referring to the ECF 9 || pagination of the exhibits) on which the redactions are located. Respondents will also 10 || be required, within 10 days following the filing of the three additional exhibits, to serve 11 || copies of those exhibits (with ECF pagination), and a copy of the notice to be filed 12 || regarding them, on Petitioner. 13 IT IS FURTHER ORDERED that Petitioner's Motion for Leave to File a Sur-Reply 14 || (ECF No. 40) is GRANTED. The Court will consider Petitioner's Sur-Reply (attached as 15 || Exhibit A to ECF No. 40) in resolving the motion to dismiss. Respondents may file a 16 || response to the sur-reply within 30 days after this order is filed. 17 IT IS FURTHER ORDERED that Petitioner’s Motion to Strike (ECF No. 41) is 18 || DENIED. 19 20 DATED THIS 22nd day of November 22, 2023. 21 22 . 23 UNITED STATS DISTRICT JUDGE 24 25 26 27 28