United States District Court, D. Nevada
MARVIN D. RICHARD, Petitioner,
JOE GENTRY, et al., Respondents.
J. DAWSON, UNITED STATES DISTRICT JUDGE
habeas corpus action, the petitioner, Marvin D. Richard,
represented by appointed counsel, filed a second amended
petition for writ of habeas corpus on October 4, 2018 (ECF
No. 18). Respondents were to respond to the second amended
petition by March 18, 2019. See Order entered
January 31, 2019 (ECF No. 28).
March 15, 2019, Richard filed a motion for leave to file a
third amended petition (ECF No. 29). Respondents filed an
opposition to that motion on April 5, 2019 (ECF No. 47).
Richard replied on April 12, 2019 (ECF No. 49).
March 15, 2019, Richard also filed a motion for leave to file
an exhibit under seal (ECF No. 30). Respondents did not
respond to that motion.
March 18, 2019, Respondents filed a motion to dismiss (ECF
No. 32), responding to Richard's second amended petition.
Richard has not yet responded to that motion to dismiss; his
response would be due May 17, 2019. See Order
entered March 29, 2018 (ECF No. 14).
motion for leave to amend, Richard seeks leave of court to
file a third amended habeas petition adding factual detail to
one of his claims - a claim that, in their motion to dismiss,
Respondents argue is unexhausted in state court. Richard has
attached to his motion a copy of the proposed third amended
petition (ECF No. 29-1).
Federal Rule of Civil Procedure 15(a)(2), a party may amend a
pleading, beyond an initial amendment, with leave of court.
“The court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). Rule 15 reflects a
policy of favoring amendments to pleadings, and courts should
apply that policy liberally. United States v. Webb,
655 F.2d 977, 979 (9th Cir. 1981). In deciding whether to
grant leave of court to amend, a court may consider: any bad
faith, undue delay, or previous amendments on the part of the
petitioner; any potential prejudice to the opposing party;
and the potential futility of the amended pleading. In re
Morris, 363 F.3d 891, 894 (9th Cir. 2004); see also
Foman v. Davis, 371 U.S. 178, 182 (1962).
is no indication of bad faith or undue delay with respect to
Richard's motion to amend. While Richard has twice
previously amended his petition, he has shown that there is
reason for him to amend a third time, to include in his
petition the newly developed further evidentiary basis for a
claim. There is no showing of any unfair prejudice to the
respondents if the amendment is allowed. Contrary to
Respondents' argument, the Court determines that the
requested amendment will not necessarily be futile. The Court
finds that the question of the exhaustion of the subject
claim will be better addressed in the context of a motion to
dismiss than on this motion for leave to amend. In short, the
Court finds that, in the interests of justice, leave to amend
is warranted. The Court will grant Richard's leave to
amend, will direct the Clerk to separately file the third
amended petition, and will set a schedule for
Respondents' response to the third amended petition.
filing of the third amended petition will render moot the
motion to dismiss the second amended petition, and the motion
to dismiss the second amended petition will, therefore, be
denied, without prejudice, on that ground. Respondents will
be granted time to respond to Richard's third amended
petition. That response may be a motion to dismiss asserting
any or all the arguments asserted in the motion to dismiss
the second amended petition.
to Richard's motion for leave to file an exhibit under
seal, Richard requests, in that motion, leave of court to
file under seal, as Exhibit 37, a copy of a supplement to a
psychological evaluation regarding himself. There is a strong
presumption in favor of public access to judicial filings and
documents. See Nixon v. Warner Communication, Inc.,
435 U.S. 589, 597 (1978); see also Kamakana v. City and
County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006);
Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d
1122, 1134 (9th Cir. 2003). However, the court has inherent
power over its own records and files, and access may be
denied where the court determines that the documents may be
used for “improper purposes.” See Nixon,
435 U.S. at 598; Kamakana, 447 F.3d at 1179;
Hagestad v. Tragesser, 49 F.3d 1430, 1433-34 (9th
Cir. 1995). Richard asserts in his motion that the supplement
to the psychological assessment should be filed under seal to
protect his privacy, and out of respect for the state courts,
which held the original evaluation under seal in his state
post-conviction proceedings. The Court finds that there is
good cause for Exhibit 37 to be filed under seal.
IS THEREFORE ORDERED that Petitioner's Motion
for Leave to File Third Amended Petition (ECF No. 29) is
GRANTED. The Clerk of the Court is directed
to separately file the Third Amended Petition for a Writ of
Habeas Corpus, which is attached to the motion at ECF No.
IS FURTHER ORDERED that Respondents will have
30 days from the date of entry of this order
to respond to Petitioner's third amended habeas petition.
In all other respects, the schedule for further proceedings
set forth in the order entered on March 29, 2018 (ECF No. 14)
will remain in effect.
IS FURTHER ORDERED that Respondents' Motion to
Dismiss (ECF No. 32) is DENIED, without
prejudice, as moot.
IS FURTHER ORDERED that petitioner's Motion for
Leave to File Exhibits Under Seal (ECF No. 30) is
GRANTED. Petitioner is granted leave of
court to file Exhibit 37 under seal. As that exhibit has
already been filed ...